Legal Ethics from Deontological, Utilitarian and Casuistry Perspectives| |
Deontological ethics are concerned with the intent of an action without regard to the outcome, while utilitarian ethics are concerned only with the consequences of the action. Some argue that the legal code of ethics is derived from a utilitarian theory, while others argue that it is derived from deontological theory. As deontological ethics are the polar opposite of utilitarian ethics, it should be impossible for legal ethics and the professional code of responsibility to be derived from both. I argue that the legal codes of ethics are in fact derived from a hybrid of both theories called casuistry. Neither deontological nor utilitarian theory could completely allow for the code of legal ethics we have in place today, while casuistry bridges the divide between the two theories.
The American Bar Association has recognized that legal ethics has strayed from normal ethics, when it is supposed to follow the basic mores of society as a whole. As such, they have revised the code to include instances where it is permissible for lawyers to disclose information furnished by their clients that used to be completely confidential with no exceptions. At the same time, they have made such disclosure acceptable, but not required. This is in order to allow for the lawyer involved to follow his own moral compass in deciding what to do in a particular situation. The Preamble of the 2009 Model Rules of Professional Conduct states in part “…a lawyer is also guided by personal conscience and the approbation of professional peers…Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living…Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.” Utilitarianism Perspective (Justice-Centered Theory)
Utilitarianism argues that in every situation the morally right thing to do is the action that promotes the greatest happiness for the greatest number of people. A major criticism of this theory is that it is solely concerned with the ends, with no regard for the means in which the goals are achieved. This theory will discount the rights of one or a few people if it will benefit the majority.
“Prior to the 1930s, there was very little opportunity for a litigant to force an opposing party to disclose information and evidence in advance of trial. Lawyers resisted the reforms that have made virtually all relevant information and evidence discoverable on the ground that such a practice was incompatible with the adversary system. However, they lost, and broad discovery has become an accepted part of what no one doubts is still an "adversary system.” This fact lends itself to the notion that codes and cannons are fluid and are amended frequently to reflect society’s mores and opinions of what constitutes justice. (Simon)
The fact that the Bar Association has repeatedly amended its Professional Code to coincide with society’s ethical standards could lead one to argue that the justice system and the professional code is based on the utilitarian theory. This argument would be invalid because the justice system is set up to favor the rights of one (for example, assumed innocent until proven guilty.) David Lubman argues that normal ethics should always overrule professional ethics, stating that “the adversary system and the system of professional obligation it mandates are justified only in that, lacking a clearly superior alternative, they should not be replaced. Thus, when professional and serious moral obligation conflict, moral obligation takes precedence. When they don't conflict, professional obligations rule the day.” (Woolley and Wendel)
Simon also argues in favor of the...