One of the claims I understand your guest Professor David Luban to have made on the show today is that an attorney has a moral obligation to do everything permitted by law to further the interests of the client.
I believe this claim is problematic because, for any legally permitted action X, it is an open question whether X is morally permitted. The law could permit X even though X is not morally permitted. In this case, if X furthers the interests of the client, then the attorney has a positive moral obligation to do X even though X is morally prohibited.
Obviously, this is absurd.
Now, we could make this duty defeasible by introducing a distinction between prima facie duty and actual obligation, such that while an attorney has a prima facie duty to do X if X furthers the interests of her client and is permitted by law, she does not have an actual obligation to do X if X violates some more important prima facie duty -- say, the duty not to pervert the course of justice.
But if we are forced to take this obviously ad hoc maneuver in order to avoid absurdity, then why do we retain the unqualified prima facie duty in the first place? Why don't we change the prima facie duty itself by qualifying it in some sensible way to eliminate beforehand this obvious and predictable conflict?
To the contrary, it seems attorneys (and their clients) have an interest in keeping this duty as free of criticism and restriction as possible, because the fewer the qualifications, the lower the moral standard faced by attorneys, and consequently the lower the risk of sanctions for violating their professional code of conduct in pursuit of their client's interests.
In other words, it seems that attorneys (and their clients) materially benefit from keeping this duty "dumbed down," even though a moment's reflection indicates that it is in real need of sophistication, and that otherwise it will lead to absurd conclusions and violations of moral obligation.
Just some food for thought.
Cheers,
-paul

Paul writes: "The law could permit X even though X is not morally permitted."
To me, the question then becomes: "morally permitted" by whom, or by what standard? Legal prohibitions tend to codify moral standards that have gained acceptance through the political process. Often that acceptance reflects a deep social consensus on moral questions, as with the prohibitions on murder or theft. Sometimes, as with the abortion controversy or de jure segregation, the legal system permits conduct which many people deem immoral.
In a democratic legal system, law and morality will be congruent, or at least there will be a rough congruence between conduct that is legally and morally proscribed. Where conflicts or lacunae develop, as they inevitably do, adjustments may be necessary to conform statutes to evolving moral standards or repeal them altogether.
Paul seems to be referring to these lacunae--the gaps (ideally temporary) between morality and law. If an attorney has an ethical duty to do "everything permitted by law" to further a client's interests, and in so doing that attorney acts immorally, then the law has authorized immoral acts. To me, such a law needs to be abandoned or modified in some way. Perhaps I oversimplify, but to me it's a tautology: the law doesn't (or at least shouldn't) authorize a lawyer to commit an immoral act, unless by "immoral" you're referring to a standard that has not gained enough general acceptance in a democratic political culture to be codified. From the majoritarian point of view, the lawyer's conduct may not have been "immoral" at all.
Though I don't consider myself to be a legal positivist, I'm struggling with the notion that the legal system would authorize a lawyer to do anything that would widely be considered "immoral."
As your guest pointed out on tonight's show, most lawyers spend their time counseling clients about how to conform their conduct to the law, which is another way of saying that they counsel their clients to act morally.
I enjoyed tonight's show, and thanks to Paul for an interesting comment.

The ?blurb? for the episode of Philosophy Talk on the topic of Legal Ethics suggested that the question of the day was whether lawyers are placed in a ?moral dilemma? by requiring them to abide by legal ethics, and whether there is ?a better way to do all of this.? Dr. David J. Luban, Frederick J. Haas Professor of Law and Philosophy at Georgetown University, observed that an attorney may inform a client in a civil matter that he will not take a certain course of action he or she finds repugnant, noting that lawyers often counsel clients about proposed courses of action based on concepts of morality. In contrast, he said, a criminal defense attorney has a greater obligation to assert a vigorous defense on behalf of a client, even if the client is one that he ?knows is guilty.? When one of the hosts asked why the Fifth Amendment protects people against self-incrimination, Dr. Luban said that its absence would encourage the government to ?give him the third degree? and that such means offend concepts of human dignity. But no one discussed the most important historical and philosophical reasons that constitutional protections of criminal defendants are embodied in the United States Constitution in the first place. In fact, one host cast aside the matter without elaboration as ?merely historical.?
The United States Constitution was written by a group of individuals (aka "the Founding Fathers") who had backgrounds in the English common law and classical educations in systems of government and law throughout history. Those men primarily aspired to develop of an effective form of national government that tends to prevent devolution to monarchy, oligarchy, or despotism. Nothing about the Constitution was written to achieve "morality," except in the broadest sense that providing for a government controlled by the individuals governed is "moral," notwithstanding the inherent immoral impulses of the masses (what Madison referred to as the tyranny of the majority) and the unfortunate consequences that inevitably result from the ability of the few to control what information is available to the many.
The protection of the interests of the individual from the power of the new government to create laws criminalizing behavior and to punish violators impelled the founders and the citizens of the colonies to draft and ratify (respectively) the first ten amendments to the Constitution (The Bill of Rights). The rights that pertain particularly to the protection of individuals against law enforcement and prosecutorial functions of government were based on our forefathers? visceral understanding that ? if not expressly prohibited ? the machinery of government WILL do whatever governments in the past HAVE done. The drafters of the Bill of Rights had first-hand experience with Parliament enacting laws and using the police power and the judiciary to crush individual resistance to the will of the Empire by specially targeting political adversaries for criminal prosecution. Some of those governmental mechanisms included making laws criminalizing conduct after the conduct was done; warrantless searches and seizures of homes, papers, and persons; convictions obtained through secret trials; trials using affidavits of suspect origin; use of confessions obtained by torture and threat of torture; cooperation obtained by the use and threat of forfeiture of blood (seizing the defendant?s property and leaving his family destitute); and all of those governmental powers were brought to bear on the individual while he was held in jail without right of bail. The Founding Fathers believed that the use of such powers against the individual was a grave threat to the survival of the newborn representative democracy, and so they forbade government to use them. So that an accused person would have the benefit of the knowledge of those rights and an effective voice by which to assert them, the Founding Fathers guaranteed the accused the right to representation by an attorney.
In popular culture, people always have had differing views about whether the government?s use of such means against a particular individual is ?moral? that depend on who the accused is, what the accused is accused of doing, and whether he is a Whig or a Tory. However, the Bill of Rights was intended to prevent governmental use of such devices in all cases. If the government were allowed to dispense with such rules depending on the degree to which the particular offender or the particular offense is morally repugnant, then evaluation of the rights of the accused would have to be based on some pre-trial moral assessment by someone ? and who would that be? Would the police take a poll? Would the prosecutor call for a special election? Even if that could be done, our Founding Fathers knew too well that decisions about such matters almost always are determined by faction, localism, and passing passions, usually informed by rumor rather than rational thought and probative evidence ? in much the same way that the English legal system dealt with politically dangerous colonists by charging them with various crimes against the Crown to get them to shut up or otherwise put them out of the way. In short, permitting the use of governmental powers based on popular belief about the morality of defendants would lead to the rapid demise of the citizen-governed republic, the same way that the use of such powers by the Crown defeated self-government in the various colonies, ultimately forcing the colonists to armed revolt.
Permitting attorneys who represent accused persons to alter the manner of the representation based on the attorney?s assessment of the moral worthiness of the client in each case ultimately would have the same effect. Such an attorney would be subject to government, political, and popular pressure to assess the client?s moral value in one way or another and alter the course of representation in the particular case to ensure a conviction. That would be worse than providing the accused no lawyer at all, effectively employing the defense attorney as a co-prosecutor and leaving no one to prevent the government from violating the principles that the Bill of Rights was designed to protect. The ultimate result of such a policy would be the same as if the Bill of Rights had not been ratified in the first place, and the procedures of the Star Chamber had been adopted by the new republic: our form of government would fail.
In summary, in order for our representative democracy to survive, the procedures employed by the criminal defense attorney must be blind to assessments of the ?morality? of the accused and of the crime alleged in the particular case. The criminal defense attorney?s ?legal ethics? require him or her to serve a role as advocate for the defendant against the government and all of its machinery without personal bias or moral judgment. An attorney violates his or her ethical obligations to the system, as well as to the client, if he or she tailors the representation based on individual determinations of what the accused morally ?deserves.? A person who cannot substitute the requirements of legal ethics for his or her own moral assessments when representing a client in a criminal case is not psychologically or professionally fit to act as that client?s advocate; and if he or she proceeds with the representation anyway, he or she has failed his or her duty as an officer of the court and sworn defender of the United States Constitution.
Thanks for reading.
R. Jones
P.S. The comments that one of the hosts made about lawyers being so well-paid simply does not apply to state public defense attorneys. In most states, the public defense attorneys are near or at the very bottom of the pay range for attorneys, and often earn less on average than the same state?s police officers and public school teachers. And some public defenders have to pay overhead out of their hourly pay, to boot.

I'm posting this in hope of stimulating further discussion, not to be pedantic or rude. Please accept the following as it is intended, in a spirit of collegial dialogue.
O'Brien writes, "To me, the question then becomes: 'morally permitted' by whom, or by what standard?"
In reply: I think it is a mistake to interpret the phrase "morally permitted" as meaning that there is a Moral Authority which issues moral permits, just as the Department of Motor Vehicles issues driver's licenses and the Department of Fish & Game issues hunting licenses.
Not to belabor the point, but I do think it's important to get right in order to talk usefully about morality. The point is this: to follow the statement that an act is morally permitted with the question "Permitted by whom?" is to commit what the philosopher Gilbert Ryle called a category mistake. Category mistakes occur when surface similarities in language lead us to misinterpret that language and attribute to it some kind of categorical meaning which it does not have. There is no Moral Authority such that an act is morally permitted if and only if it is permitted by the Moral Authority. Nonetheless, even without the Moral Authority, we can still think about the logical consequences of an act being or not being morally permitted. Nothing keeps us from thinking about such consequences, except fundamentalism that designates those questions as off limits.
O'Brien also writes, "In a democratic legal system, law and morality will be congruent, or at least there will be a rough congruence between conduct that is legally and morally proscribed."
In reply: I disagree. One need only give an acceptable definition of 'democracy', and then adduce obvious counterexamples. Either no state is a democracy, or there exist democracies with laws permitting acts that are not morally permitted. Case in point: the United States is presumably a democracy. In the United States, capital punishment is legally permitted. But killing is not morally permitted, at least not according to a standard interpretation of the Ten Commandments, which seem as good a candidate as any for a list of acts not morally permitted. From this perspective, if capital punishment is killing, then the law permits a morally prohibited act. (I'm not saying I believe the Ten Commandments express moral facts, I'm just using them as an example of a list of putatively morally prohibited acts.)
Further, in a liberal democracy, in which John Stuart Mill's distinction between the public and the private exists, there is an entire domain of activity -- the private domain -- that is categorically free of legal prohibition, because it includes only those acts which do not harm others. If just one act in the private domain is morally prohibited, then every liberal democracy licenses at least one morally prohibited act.
Jones writes, "An attorney violates his or her ethical obligations to the system, as well as to the client, if he or she tailors the representation based on individual determinations of what the accused morally 'deserves.'"
In reply: Jones seems to assume that an attorney can operate behind a veil of moral ignorance with respect to her client. This might be true for some morally relevant facts about a client, such as whether he is guilty as charged. But this clearly is not true with respect to all morally relevant facts about a client. For example, attorneys who collect fees from clients obviously judge that their clients are morally deserving of work according to an hourly fee schedule. The last criminal defense attorney with whom I spoke about this (out of curiosity, not because I needed his service) deemed most clients to be morally worthy of $450 an hour in legal fees. In some cases he said he reduces his fee to $150 an hour, or free, if he deems the client morally worthy of it. But if he deems a client morally unworthy of pro bono representation, that client is out of luck unless he can pay the requisite attorney fees. This is a direct counterexample to the claim that attorneys operate behind a veil of ignorance with respect to the moral qualities of their clients.
Now, even though there is no Moral Authority, there are entities which issue moral opinions. These include professional ethics boards, such as those hosted by bar associations, which debate about and issue guidelines for the professional conduct of attorneys. Such boards are free to consider any moral dilemma facing attorneys -- not necessarily grandiose moral dilemmas in light of which all our Constitutionally-guaranteed rights might collapse, but ordinary, everyday moral dilemmas such as these:
1. Consider counsel for an insurance company. This attorney acts overtly rude to all claimants with the intention that, should the claimant ever be examined in court, the claimant will spontaneously appear angry and unreasonable at the attorney's questions, and therefore less deserving of a charitable hearing. This is legally permitted, but is it morally permitted?
2. Consider a public prosecutor who repeatedly interrupts a witness in court, knowing that the witness, who suffered head trauma as a child, is likely to react angrily and say things that will damage credibility. Legally permitted, but morally permitted?
3. Consider an attorney in deposition, who baits the deposed using non-verbal communication that will not be entered into the public record as part of the court clerk's transcript, so that the deposed will appear spontaneously to say things that are damaging. Legally permitted, but morally permitted?
These are ordinary, everyday moral dilemmas regularly faced by attorneys. So I repeat the question I asked before: why don't bar association ethics boards look at these kinds of issues and incorporate their findings into their professional codes of conduct? Why leave these moral dilemmas to the individual attorney to work out in an ad hoc manner, possibly getting things wrong? My suggested answer is that attorneys (and their clients) materially benefit by keeping their professional code of conduct "dumbed down," so as not to subject themselves to risk of professional censure as they go about their business.
Again, I say this in the spirit of stimulating further discussion, and not to dump on attorneys. I'm sure similar arguments could be made against any profession, including philosophers.
Over & out,
-paul

I agree with Paul that the laws enacted by a legislature in a democracy often are incongruent with morality -- my morality, anyway. ;) More importantly, many laws enacted by legislatures are incongruent with the rational self-interest of both the electors and the electorate. And so, I also agree with Paul that we don't gain much in the discussion by observing that there is no general agreement among people about the source of moral authority, let alone its contents.
Paul also makes several good points about what attorneys do and do not do with respect to charging clients and what attorneys refer to as "tactical choices" in the manner of conducting their work. I suppose that it's fair to characterize those as "moral choices," and I agree that those are the kinds of behavioral choices that are faced by people in many lines of work. Indeed, I would say that those are the kinds of choices that all people face in daily life.
But those are not the kinds of choices that my comment was intended to address. I understood the topic of the program to be focussed on conflicts between "legal ethics" and "morality." My comments were directed at that particular portion of the discussion concerning whether a criminal defense attorney should abide by the directive of legal ethics to present every available defense in a criminal case, even when the client or the client's conduct is morally reprehensible.
Whether an attorney chooses to represent a particular person in a particular case in the first instance may well be a matter that is properly decided on the basis of the attorney's sense of morality. My central point was that, once a person undertakes to represent a defendant in a criminal case, that attorney has no business making decisions about whether to raise available defenses and make lawful objections based on whether the attorney believes that the client is "guilty," let alone whether the client is "immoral." That limitation on the lawyer's application of his or her moral values is necessary to guard against tyrannical tendencies inherent in any CRIMINAL justice system, and if a particular attorney cannot do that in a particular case, then the attorney should decline to represent that client on conflict of interest grounds.
That is a distinct concept from whether using one tactic or another is "moral." For example, one of the commenters suggested that an attorney should not brow-beat an alleged victim on the witness stand, if the attorney "knows" that the client is "guilty." My answer is that brow-beating a particular witness may be moral or immoral depending on any number of case-specific circumstances -- such as, for example, whether the attorney has a reasonable belief that the witness is committing perjury, and whether the witness is teetering on the edge of sanity. But whether the criminal defense attorney believes that the client is morally worthy -- or even guilty of the offense -- must not be one of those considerations. The distinction between whether the witness is lying and whether the client is guilty may be subtle, but it is important.
And, of course, as another consideration: The trial court judge has the responsibility to referee whether the attorney has stepped over the line of necessity and decorum in the conduct of a case, and an attorney who goes too far in, the heat of the moment or otherwise, risks contempt of court, paying a fine, spending time in jail, and being reported to the bar for discipline. An attorney who goes too far outside the courtroom can be prosecuted for obstruction of justice, interfering with police officers in the course of an investigation, and any other crime for which a citizen can be charged.
But since Paul has posed another question, I will respond to that as well. He asks: "Why don't bar association ethics boards look at these kinds of issues and incorporate their findings into their professional codes of conduct?" The answer is: They do.
Many questions that Paul considers "moral issues" in the practice of law are, in fact, addressed by state bar rules of legal ethics, such as: attorneys are prohibited from using legal tactics purposefully to increase the cost of litigation, whether it be to line their own pockets or to force the opposing party to settle a case out of court due to lack of time or funds; attorneys in most states are prohibited from engaging in certain behaviors (i.e., ambulance chasing and coordinating with professionals in other fields, such as accounting and medicine) designed to attract clients to their offices by unscrupulous means; in some states, lawyers have been prohibited from advertising beyond placing their names and area of practice in the yellow pages of the telephone book. Most states have professional rules governing how attorneys charge and collect their fees. At least one state even has a rule that prohibits attorneys from having sexual relations with a client, unless he or she already was engaged in such a relationship before the representation began (i.e., you can represent your wife, but you can't marry your client). Those rules are related to "moral" choices, to be sure, but they have nothing to do with an attorney's assessment of the morality of the client, which was the topic of the conversation that I addressed.
No rule or law can articulate every conceivable constellation of facts and considerations that go into making a decision about a particular attorney's conduct in a particular set of circumstances, any more than it can do so for any one else's conduct. Bar associations have disciplinary boards that routinely issue opinions about the conduct of attorneys, and those are often reviewed by courts, which publish written opinions about the findings and conclusions of the boards. Bar publications routinely advise membership of disciplinary actions taken against attorneys, spelling out the particular behaviors that led to punishment by censure, suspension, or disbarment. Many bars require their members to routinely take continuing legal education classes in legal ethics, usually taught by people whose primary employment is working in the field of attorney ethics and discipline. Those courses try to help attorneys organize their practices to prevent problems and to sort through some of the confusing dilemmas that attorneys face. Many state bars provide informal opinions in response to "hypothetical" questions raised by its members, so that an attorney can get some helpful advice before making a difficult decision.
Without having conducted a detailed analysis of the subject, I would say that the most usual cause of disciplinary action in the state where I practice are for (1) failure to maintain a sensible limit to the caseload (i.e., taking on too many cases) so that the work can be managed timely and effectively; and (2) failure to keep clients timely apprised of the proceedings (that is, not so much failure to file a document on time as failure to tell the client what was being done). The most common cause of disbarment seems to be for failing to follow the kind of accounting procedures that will ensure that client's retainer accounts are not prematurely comingled with the lawfirm's accounts; for example, transferring money from the retainer account to pay a filing fee before the filing fee is actually paid. Those failures are considered egregious -- even if no client has alleged that the attorney has committed fraud or theft -- because failing to maintain proper accounting methods represents poor financial judgment that can harm the clients and that make detecting (or proving) fraud or theft difficult.
In other words, most questions of attorney ethics relate to whether an attorney is staying on top of things, and not whether the attorney is making choices base on sound moral principles. Attorneys are seldom faced with "great moral dilemmas" that conflict with their ethical responsibilities as lawyers; and when they do, there seldom is any clear or categorical answer to the problem -- even within the fundamentalist's religious precepts. In fact, one of the most common problems that attorneys have in navigating the shoals between moral values and legal ethics have to do with the rules that make reporting suspected child abuse mandatory, even when the suspicion has nothing to do with the attorney's law practice or clients. That kid next door whose parents are always yelling and who routinely has scrapes and bruises -- do I have the responsibility to risk retaliation by the parents and investigate whether the injuries are from skateboarding or child abuse? Do I have to call Children's Services or risk being disbarred? Apparently, I do.
But for most lawyers, the moral dilemmas faced on a daily basis involve whether to work until 10:30 p.m. to ensure adequate preparation for the next day's proceedings or go home and have dinner with the family and read a bedtime story to the kids.
Thanks for the chat. Now I must get back to work! :)
R.Jones

"Not to mention prosecutors, who, if my sources of information, mostly television shows, are to be believed, regularly browbeat people into copping pleas for crimes they didn't commit."
Wait till you hit Family Law and child support. They beat down men for federal funding under Title 42 IV-D Progarm. You'll be surprized, it's a lawyer's dream job.

The question is often asked: What if a client admits to their attorney that they are guilty of an absolutely heinous crime fully deserving of severe punishment. Is it moral or ethical for the attorney to represent the client and work toward acquittal?
Answer: The law as written allows for acquittal subject only to prescribed due process without conditions being placed on the defense attorney, so there is evidently no other societal obligation. Therefore, to the extent that ethics or morality is defined by societal demands, achieving acquittal is moral and ethical, although it?s interesting that this includes possibility of repetition of the crime by an admittedly guilty party.
However, the descriptions ?heinous? crime, and ?severe? punishment imply something further. An additional ?clue? is that, strictly, it should be legal punishment rather than simply punishment. Thus we conclude that the question actually refers to a further standard. The implication is that a ?heinous? crime always ?deserves? some degree of commensurate SUFFERING by the perpetrator rather than simply accountability to society, which has already been settled (forget how to punish a masochist). Clearly, morality and ethics in this instance is being referred to other unstated premises. Ya? takes yer? choices!