A few years ago, I developed a distinction between two concepts of lawyer in an adversarial system that has attracted a lot of attention in the field of legal ethics. This distinction is between what I have called „pure lawyers“ and „moral agents.“ First, a lawyer is a technician who is able to manipulate the law solely for the purpose of promoting a client`s legal interests. The question of law is one thing, that of morality is another; And the lawyer serves the law, not morality. In contrast, moral lawyers accept moral limits on what lawyers can do to promote the legal interests of their clients. Virtually all difficult ethical issues arise from a conflict between a lawyer`s responsibility to his or her clients, the legal system, and his or her own interest in remaining an ethical person while earning a satisfying life. Rules of ethics often prescribe the conditions for resolving these conflicts. Within these rules, however, many difficult questions of professional discretion may arise. These issues must be resolved by sensitive professional and moral judgment, guided by the fundamental principles of the Regulation. Although Lord Brougham`s remarks in the case of Queen Caroline were probably not conceived literally (Brougham indeed seems to have agreed with Lord Chief Cockburn`s remarks at the aforementioned dinner), the ideal embodied in Brougham`s remarks seems to fuel the intersection of politics and legal practice in the current political-legal climate. In this climate, lawyers working for the government, especially the White House, prove to be amoral channels for the government to manipulate the law, not for the good of the nation, but selfishly.
The ABA clearly emphasizes the importance of exercising „sensitive professional and moral judgment“ to resolve conflicts between a lawyer`s responsibilities to the client and those to the legal system and his or her own personal and ethical interests. While the rules of professional conduct emphasize zealous defence, they also permit the exercise of moral discretion. For example, under Rule 3.3(a)(3) of the Model Order, „A lawyer may refuse to adduce evidence. that the lawyer reasonably believes that it is false. A moral actor would exercise such moral discretion, while the pure lawyer would not hesitate to use evidence that would reasonably be considered false if it helped the lawyer win, regardless of the moral outcome. Clearly, according to the concept of the moral agent, lawyers are not supposed to „be reckless about the consequences, even though it should be his unfortunate fate to drag his country into confusion.“ A classic and extreme formulation of the pure lawyer approach dates back to 1820, when Lord Brougham pitted Queen Caroline against George IV. He wanted a divorce for adultery. In contrast, the moral advocate sees legal practice more in terms of truth and the administration of justice.
After all, the lawyer is an official of the court, not just the client`s lawyer. This concept was formulated in a classic way by Lord Chief Cockburn. At a dinner in 1864, at which Brougham was also a guest lecturer, Cockburn uttered these profound words in response to Brougham`s earlier remarks: My noble and learned friend, Lord Brougham, whose words are the words of wisdom, said that a lawyer should pursue his client`s interests without fear; But I associate this with this qualification and limitation – that the weapons he carries must be the weapons of the warrior and not of the murderer. It is his duty to try, to the fullest extent of his strength, to reconcile the interests he has to safeguard and the duty incumbent upon him with the eternal and immutable interests of truth and justice. The concept of moral agent is also written into the preamble to the American Bar Association`s Model Rules of Professional Conduct: For example, Trump`s former lawyer John Dowd recently called for an end to special counsel Robert Muller`s investigation into Russian interference in the 2016 presidential election and possible ties to the Trump campaign team. „I pray,“ said Dowd, „that Acting Attorney General Rosenstein. End the alleged investigation into Russian collusion fabricated by McCabe boss James Comey based on a fraudulent and corrupt dossier. There is a smell of politicization of a serious legal process here by using emotional terms like „fabricated,“ „fraudulent,“ and „corrupt“ instead of evidence.
Watch a playful power play (firing people) to prevent evidence from being heard before a decision can be made on the merits. Unfortunately, this is the mark of a pure lawyer who is willing to literally risk bringing down a nation to promote a client`s interests. The training of lawyers in „simple instruments“ of state power in the Third Reich is an instructive example of how the legal profession can become the servant of tyranny rather than the vanguard of democracy. So it`s not hard to imagine how lawyers like Michael Cohen and John Dowd could become savvy pawns in a chaotic system that has the potential to undermine rather than preserve democracy. It would therefore be worth remembering the venerable words of Lord Chief Cockburn, who urged lawyers to reconcile their duty of intercession with „the eternal and unchanging interests of truth and justice.“ For example, the Trump administration recently hired Washington lawyer Joseph E. diGenova, who said in 1998 that the 1978 law on ethics in government should be shut down. Title IV of the Act establishes the Office of Government Ethics, which is responsible for dealing with conflict of interest, ethical issues and the disclosure of financial statements by government officials. More recently, diGenova has advanced a number of unsubstantiated conspiracy theories.
For example, he claimed that the Mueller investigation into the collusion of Trump`s campaign advisers with Russia is „a brazen conspiracy to illegally exonerate Hillary Clinton and, if she does not win the election, to slander Donald Trump with an ill-conceived crime“; and that „it was not the Russians who corrupted the presidential election; it was U.S. officials from the Department of Justice and the FBI“; and that Mueller`s appointment as special counsel was illegal. In the absence of evidence to support these allegations, they serve only to conceal the search for truth and the administration of justice and to poison the well; Exactly the special skills that a pure lawyer brings. A lawyer knows only one person in the whole world in the performance of his duties, and that person is his client. To save this client by all means and means, and under all dangers and costs to other persons and among them for himself, is his first and only duty; And in fulfilling this duty, he must not think of the anxiety, the torment, the destruction he can bring to others. By separating the duty of a patriot from that of a lawyer, he must ruthlessly face the consequences, even if it is his unfortunate fate to drag his country into confusion. For the pure lawyer, it is more about winning, less about seeking the truth or administering justice. Guilt is what a judge says, and if the judge never says you are guilty, then you are not guilty. A popular tactic of the pure avocado is chosen ignorance.