Unless you’re an absolute anarchist or something along those lines, you likely agree with the general consensus that the law is, in short, a pretty good thing. Personally, recent socioeconomic and political events have only propelled this sentiment (I’m looking at you anti-maskers). Ultimately, in a society that thrives, or rather, requires a solid degree of structure and regulation, it is equally important that some figures or bodies uphold such a balance for the greater good of both individuals and the collective interest.
So without the emotional bravado and fluffy wording, a society needs laws. By extension, society also needs lawyers to practice and uphold these laws to prevent people from doing unethical things like theft, assault, or… flushing the toilet after 10 p.m if you live in an apartment in Switzerland because apparently, that’s a crime.
In hindsight, this actually does make some sort of coherent sense; for residents in a living space with so many people in such short proximity, the sound of a toilet flushing late in the evening is supposedly too loud for many. It does, however, mean that I may have potentially dabbled into a life of crime when I visited Europe, but that’s a discussion for another day (You can’t prove anything!).
This leads to another interesting point of discussion and the primary topic for this post. The functioning of a society is mainly contingent on whatever legal system a jurisdiction falls under, and the trust that we place into a legal system is dependent on the ethicality of the system and the belief that the law can effectively serve the greater good of humanity (very dramatic, I know). However, like in any field of practice or study, no system is perfect; it is liable to flaws, manipulation, and marked with imperfections. While the interesting yet questionable laws on toilets in Switzerland are by no means a severe example, it does not undermine the fact that many laws around the world do not serve the collective good, nor are they fair and just. Thus, if the ethics of the system is contested, it is also necessary to evaluate the ethicality and philosophies of those who uphold the said system. As such, how do you define that enigmatic personality known as (cue the drumroll) “the good lawyer?”
Code of Ethics
With all of that being said, it is certainly important to recognize that the legal system is not stupid (obviously). It takes years of practice, studying, and dedication to even fathom working anywhere in the field, and these people work tirelessly to ensure that the system that they practice supports the delicate ethical balance that they are attempting to uphold. In most legal systems around the world, this typically comes in the form of a code of ethics or something similar. In Canada specifically, it is called a Code/Codes of Professional Conduct, which essentially details a common set of rules and guidelines that are expected to be followed in a court of law and underlines the ethical frameworks that should be followed by lawyers. The Canadian Bar Association also provides a plethora of materials such as a Moral Code Ethical Self-Evaluation Tools in building a better “ethical infrastructure” in Canadian legal practice. Most other nations/jurisdictions will have similar frameworks in place.
In essence, these guidelines are what set the boundaries for ethical law practice and what is considered to be “morally correct.” The standard question/example that most people provide when attempting to critique the system is the case of a criminal lawyer defending someone facing a conviction. To make this paper more exotic, let’s say they’ve committed first-degree murder. To add some spice, let’s say they hypothetically also have a few assault charges beneath their belt. Honestly, for the rest of this example, you can just imagine as many horrible crimes as you want; let your imagination run wild. How can a lawyer be ethical when they are competing for the best interests of such a heinous and shameful person?
In short, it’s because you’re characterizing the case too superficially. The duty of a lawyer is not to fight for the best interests of their client; rather, the goal of every lawyer is to ensure that every individual receives the proper representation that they deserve in a court of law. The right to counsel is a fundamental right that, at least in most western liberal democracies, everyone is guaranteed under the law. The lawyer is not trying to get a criminal off a case with as few repercussions as possible; they have a responsibility to ensure that every citizen that becomes a client receives the legal representation that they deserve and that every case that they are a part of runs as “accurately” and righteously as possible. That means that every individual, regardless of how unacceptable and socially repressed, is ensured that predisposed principle to uphold the morality of the court. Like one may contend that defending a murderer is unethical, is it also not unethical to strip that individual of the rights and freedoms that everyone is guaranteed de-facto under our constitution? The degree to which a lawyer follows their code, regardless of how much integrity they have or how ethically they conduct themselves, determines their competence as a practitioner. As such, their competence is entirely what determines how effective/ethical of a lawyer they truly are.
What does it mean to be a “good lawyer?”
With that being said, this loops back to the original question that started this entire article: if the law itself is unethical, to what extent does this affect the ethicality of the lawyer? Again the moral reliability of a lawyer, on a surface level, is entirely dependent on how well they follow that Code of Ethics or Code of Conduct, and lawyers are given a shiny philosophical badge of ethical duty assuming they follow these guidelines well enough. However, if the guidelines themselves are damaged, is a lawyer who follows the code of ethics still considered to be “in the right?”
I’ve said this before, but I think this is also a pretty complicated and loaded question, just because “good” needs a proper definition. While there is obviously is a set guideline for what it means to be a “good” lawyer (that’s what the Rules/Codes of Professional Conduct in Canada and the US are for after all), there is also an ethical definition for a “good” lawyers that’s a bit up in the air, especially when taking into account the current sociopolitical landscape. If you want to add ANOTHER layer of thought to this, you also have lawyers that are just straight-up talented in negotiations and winning court cases. To a certain extent, that individual is also a “good” lawyer, just in a different way.
Even more, it’s difficult to say whether or not these codes or rules are totally ethical. Sure, they’re founded on moral principles, but morals and ethics are fluid, and it’s not exactly like these codes of conduct are constantly changing at a frequent rate. Additionally, there are admittedly some parts of many legal systems that are just straight up flawed, corrupt, and/or seriously ethically questionable. We may have future blog posts that detail these proceedings specifically (keep an eye out!), but the current events happening in the United States regarding the BLM movement, the rise of corruption in Medical Malpractice and IP, and the clear biases and oppression in international legal frameworks in certain countries are just some of the examples that highlight how questionable the law can become. It obviously never gets as bad as popular media likes to depict it, but it is a strange reality that hasn’t quite surfaced for some people yet.
And thus, the rabbit hole begins. Take everything with a grain of salt, but here are a few interesting points of thought:
If a system is inherently flawed, it can be inferred that the people who follow the system are also morally questionable, regardless of the belief that a lawyer is ethical by doing everything in their power to follow a code of conduct.
Even more, participating in a flawed system, regardless of whether or not the lawyer themselves commits any immoral acts, can be argued to be unethical as passivity results in the proliferation and continued dominance of the system.
Lawyers are placed in an incredibly difficult position when defending those who are morally disagreeable because it requires very strange coordination of refraining from moral judgment while also staying conscious of how consistently being non-partisan or morally absent from all cases inadvertently feeds into the negative aspects of a legal system, as all frameworks contain those intrinsic flaws. This principle is often demonstrated in mainstream media and entertainment (think the final courtroom scene in Liar Liar (1997)).
Is it really in the best interest of society and the individuals involved in a case for a lawyer to refrain from a moralistic reflection in an institutional settlement if abstaining from such deliberations could lead to an ethical detriment?
Theoretically, even if a lawyer strips themselves from the responsibilities of a mostly unethical legal system and decides to only serve the interests of those who are deemed morally reputable/qualified, is this not also unethical? Even unethical people are guaranteed proper representation in the court of law as it serves the best interest of the case. At the very least, that specific principle is well-founded and generally agreed to be ethical.
Adding on to that, who is the lawyer to decide that the law is unethical, especially a system that dictates the regulation of a pluralistic society?
There are so many more things to discuss, but TL;DR (take everything I say with a grain of salt), you can say that there are many definitions of a “good” lawyer. A good lawyer in practice is one that is good at defending and representing their clients in court while respecting their rules of conduct, but you also have the “good” lawyer that serves the greater good of humanity, even if it means they sometimes don’t fit that classic definition of a perfect legal practitioner (kind of like the ones you see in films). Ultimately, regardless of how flawed the legal system is, lawyers do everything in their power to ensure the most ethical and humanitarian society possible for the best interest of the collective. It is important that we support the lawyers of today and rally the youth leaders in the law of tomorrow to create a better legal system that works to perfect the delicate ethical balance that we should be seeking to create.
Anyways, if you made it to the end of this, I would like to clarify that this is by no means meant to be a critique of current legal systems or lawyers. As someone who is considering a future in law as a potential career field, I have a great amount of appreciation for the field and those who practice it. This article is simply meant to be a method of opening dialogue and introducing a sentiment into an already prevalent discussion that is by no means new or unique. Regardless, I hope you enjoyed reading!
Henry
References/Further Readings
https://www.cba.org/Publications-Resources/Practice-Tools/Ethics-and-Professional-Responsibility-(1)