Ethical Views Affect the Practice

¶ … Ethical Views Affect the Practice of Law?

Over the last several years the role of the attorney has been an evolving one, as various court decisions and ethical standards determine how the law is practiced. Yet, beneath the surface their duties and responsibilities will vary. To determine how the role of the attorney is changing requires that you examine: the role of various attorneys, the oath that they agree to uphold after passing the BAR and how the view of ethics will determine which clients they will represent. The way that these objectives will be achieved is by carefully examining three peer reviewed articles on the subject. At which point, an analysis of the main ideas will be presented and the total impact will be analyzed. It is through examining the changing role of the attorney in this light; that will help provide a greater understanding as to what are the ethical roles / responsibilities of all attorneys.

Literature Review

Rubin, P. (1994). The Changing Role of Lawyers in Changing the Law. Journal of Legal Studies, 23 (2), 807 -- 831.

In the article the Changing Role of Lawyers in Changing the Law, it talks about how there is common misconception about who has affected the greatest changes in the law. Where, many in the general public will assume that judges and litigants have an effect. However, those who have the greatest effects on changing the legal system are attorneys, who argue the different cases. This is significant, because it highlights how and in what ways the various roles of an attorney will have in the field of law. The way that these arguments will take places, is based the use of various ethical standards. (Rubin, 1994)

Wolfram, C. (2001). Toward a History of the Legalization of American Legal Ethics. Cornell Law Review, 40 (12), 469.

In the article Toward a History of the Legalization of American Legal Ethics, it talks about how there is strict code of ethics that guides all attorneys. This is a part of their oath that they agree to when they first become an attorney. As the BAR will punish those attorneys who engage in unethical behavior towards clients or non-clients through: fines, censure and a ban from the industry. This is called a breach do duty and it is the core foundation of the lawyer code of ethics. This is significant because it highlight how the oath, is enforceable by the BAR through a number of different actions. (Wolfram, 2001)

Luban, D. (1999). Reason and Passion in Legal Ethics. Stanford Law Review. 51 (9), 122 -- 129.

In the article Reason and Passion in Legal Ethics, it highlights how many people believe that lawyers are lacking ethics. In some situations, this perception is fueled from the greed that is constantly seen by the public, the frivolous law suits and the lack of using any kind of good judgment. As a result, for an attorney to be above these kinds of criticisms requires that they have passionate views about the cases that they represent. According to the article, when this happens it means that counsel is willing to go the extra mile, to ensure that their client's rights are respected. Taking such an approach, will increase the amount of ethical standards that are being applied to a case, as an attorney will have a greater sense of responsibility. (Luban, 1999)

Main Body

The above pieces of literature highlight the overall changing roles that all attorneys are facing. Where, the use of ethical standards will play a significant part in shaping the legal system. This can be seen by looking no further than the difference in roles of various attorneys such as: the defense attorney, the prosecutor and the private attorney. The defense attorney has a legal / moral responsibility to ensure that their clients receive a fair trail. This means, that during criminal cases they will examine the evidence collected against their client and will raise issues to bring into question if a reasonable doubt exists (this is the legal standard to convict). The prosecutor's role is to go after those individuals and organizations that break the law. Their responsibility is to ensure that the rule of law is always respected by the general public. They also serve as the voice of the victims of crimes, where they underscore their views as a part of any legal proceedings. The private attorney plays a role in representing clients on a number of different cases ranging from civil to criminal. They play a part in supporting the legal system by: providing the general public with advice on a variety of legal issues. This is important, because many private attorneys will often focus of specific aspects of the law, when providing this advice to their clients. Together, the different roles will play a role in determining how the legal system is shaped, based upon the cases they argue. This supports the ideas presented in the article the Changing Role of Lawyers in Changing the Law.

The use of various ethical standards and penalties began to gain traction in 1969, when the American Bar Association created the Model Code for Professional Responsibility. This established a moral code of ethics that would be enforceable throughout the country. In the 1980's, this code of ethics was expanded as local and state BARs became involved in applying ethical standards to all practicing attorneys. The code was created after the 1908 Professional Cannons of Ethics was determined to be ineffective. What happened was, this standard created a loosely-based guideline of ethics for attorneys to follow. However, after it was determined that more self-regulation was need; the Model Code for Professional Responsibility was created. (Rhode, 2004) This fits with the ideas presented in the article Toward a History of the Legalization of American Legal, as it obvious that a code of ethics that was enforceable was necessary. As a result, the overall tools that the BAR has are: to effectively regulate these different standards within the industry.

When an attorney is lacking ethics, it usually boils down to a lack of continuous ethics training. This can be seen by the fact that when most lawyers face disciplinary action from the BAR. Where, in many cases, they were unaware that they were breaking any kind of moral standards. This is because, lawyers work in a field where the constant amounts of scrutiny are minimized from the power they hold. As a result, many lawyers assume that they are always acting the in most morally correct way. Once this takes place, it is only a matter of time until this attorney will face action from the BAR. This is because their ethical views shaped the way that they interacted with clients, creating a conflict. A good example of this would be when an attorney represents a large corporation in a civil lawsuit. During the process of discovery, they determine that the opposing counsel is engaging in a frivolous law suit. In this particular situation, an ethical conflict exists, where engaging in such law suits to increase the total amount of legal fees received is a violation of: Rules of Professional Conduct. The attorney who is representing the corporate client has a legal obligation to report such violations to the BAR. In this situation, the attorney for opposing counsel would more than likely face censure or a ban from practicing for a certain length of time. (Graham, 2004) What the above example shows, is that when an attorney engages in actions outside of serving the best interests of their clients, it can lead to various ethical dilemmas. This supports the ideas presented in the article Reason and Passion in Legal Ethics. Where, those lawyers who represent clients based on greed or anything that does not support the interests of them, are engaging in unethical behavior. To prevent such situations, requires that all lawyers have passion for their clients' interests. This will ensure that most morally correct practices are always being followed, by placing their interests first.

Conclusion