# Legal Ethics Questions (Scenarios) **URL:** \ **Category:** Great Debates\ **Created:** [May 18, 2009, 2:12pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852 "2009-05-18T14:12:38Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [May 21, 2009, 12:43am UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/41 "2009-05-21T00:43:04Z")
> [@YogSosoth](#): > > I wouldnt do this unless I was fairly sure. “Think” probably isnt the most descriptive sense of what my mindset would be. It’d be more accurate to say that I believed very strongly of his guilt based on what I know of the evidence. I wouldnt do this just on a little whim, that’s what I’m trying to get at. Given that as a defense lawyer, I’d be expected to know everything the prosecutors know AND the little snippets of information confidentially told by client to lawyer, I’d have a more than good idea of the guilt of my client. That might be arrogant, but its not as simple as boiling the evidence down to me acting as judge and jury. As a lawyer, I’d know the law, and if it was truly the instance in which guilt is pretty well established, well, then I would think its reprehensible NOT to act Is a complete stranger allowed to do this for you, or for your loved ones? Look at the evidence and decide for themselves (after careful consideration) whether or not they are guilty and then sabotage you or your loved one’s case? Would you be ok with getting rid of the whole court system/all criminal lawyers and allowing certified and then elected judges to investigate and just make the call on who is guilty? If you don’t trust trained and democratically elected people with that sort of power, why should you be allowed to have it? ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [May 21, 2009, 12:47am UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/42 "2009-05-21T00:47:00Z")
> [@Oakminster](#): > > … They’re still entitled to a vigorous defense. The State must be held to the standard of proving guilt beyond a reasonable doubt. Doesn’t matter if the crime is jaywalking or mass murder. Contrary to popular belief, the role/obligation of the criminal defense lawyer is not to “get the client off”. The role of a criminal defense lawyer is to see that the client’s rights are protected. He must be given a fair trial, before an impartial jury(unless he wishes to waive trial by jury). The evidence against him must be admissable under the applicable rules. The witnesses against him should be cross examined to expose any contradictions, bias, or other reasons to doubt the testimony. He must be able to present witnesses/evidence in his own defense, and have compulsary process to obtain same. The jury must be properly instructed on the applicable law, and they should hear argument from counsel before rendering a verdict. I cut out some, hopefully I didn’t change the meaning. The attorney’s job is to see that his client gets a fair trial, according to the law. If there is reasonable doubt, then the law says there should be an acquittal. So, if the attorney finds this reasonable doubt and uses it to get an acquittal, he has done his job. Guilty people sometimes go free. Innocent people sometimes get convicted. No system is perfect, no person is the perfect arbiter. But, it’s a long lived system, and nothing better has been developed. It’s a system that at least tries to be fair. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 21, 2009, 3:14am UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/43 "2009-05-21T03:14:58Z")
> [@villa](#): > > I was trying to come up with a scenario and it was mob stuff that sprung to mind. I guess the bottom line that we keep returning to is that I cannot ethically elicit testimony I know to be false. If the client has told me he is going to lie on the stand, I’m not allowed to ask questions that can bring those lies out. I think you are imagining, and correct me if I am wrong, a situation where the attorney stands there and asks “you didn’t really do it did you, you were lying to protect X” I just don’t know how I would get to that position, because I couldn’t have asked him the preceeding questions where he confesses because I would know I would be eliciting a lie there. I really do not know what I am imagining. I realize this is a fringe hypothetical but I figure if you get the fringy hard ones then then more usual conundrums might be easier to resolve. You’ve thought about the hard stuff, everything else is easy(er). In my hypothetical I am not sure you want to pin the guy with, “you didn’t really do it did you, you were lying to protect X”. The guy, in my case, does _not_ want to finger “X” (or a parent would not get there only to roll over and toss their kid under the bus at that point). So where does an attorney go with this? Not sure there is a good out in this case assuming you (the attorney) have excellent reason to believe your client is truly innocent and taking a fall intentionally. You are not supposed to perpetrate the lie on the court, you are supposed to advocate for your client’s best interests, your client is taking the rap but hoping somehow you can get them acquitted. Yep…fringe stuff. But interesting as a thought experiment. That or I should write court drama (e.g. things that never actually happen in court but gets good TV ratings). ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [May 21, 2009, 3:43am UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/44 "2009-05-21T03:43:07Z")
I don’t know that I can answer the fringe hypothetical. It just doesn’t happen that way, at least not in my state. Consider the following: 1. The time to enter an initial plea happens very early in the criminal process. Before discovery is complete, so you don’t really know what the evidence will eventually be. 2. The defendant can’t just plead guilty. If he indicates a desire to do so, the Court will then examine him under oath. He must admit each and every element of the offense to which he is attempting to plead guilty. The Court can’t accept his plea unless the Court believes he has testified truthfully, and he understands the ramifications of his actions. 3. The lawyer is standing next to his client at this hearing, but is not an active participant in the dialogue. This pretty much destroys the hypo, because the lawyer is not perpetrating a fraud on the court, regardless of what the client says. The fact that the client is committing perjury would be protected by the privilege…assuming the lawyer somehow knows it is perjury at this stage in the proceedings. 4. It is possible to change a plea of not guilty to a plea of guilty pretty much any time before the jury returns a verdict, but the process described in #2 & #3 above still applies. 5. If the lawyer still feels he is somehow compromised, he can ask the Court to allow him to withdraw. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 21, 2009, 2:17pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/45 "2009-05-21T14:17:55Z")
> [@AK84](#): > > In England and Wales its pretty standard to reexamine (as its called here) when its the accused on the stand. I think we are on slightly different paths here - it isn’t whether you reexamine the defendant when you have called him to the stand, it is if you can reexamine him when he has taken the stand, and testified in narrative form (without questioning from his attorney). If so, can you have him declared a hostile witness to himself (which doesn’t mean what TV suggests it means)? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 21, 2009, 2:23pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/46 "2009-05-21T14:23:29Z")
> [@Whack-a-Mole](#): > > I really do not know what I am imagining. > > I realize this is a fringe hypothetical but I figure if you get the fringy hard ones then then more usual conundrums might be easier to resolve. You’ve thought about the hard stuff, everything else is easy(er). > > In my hypothetical I am not sure you want to pin the guy with, “you didn’t really do it did you, you were lying to protect X”. The guy, in my case, does _not_ want to finger “X” (or a parent would not get there only to roll over and toss their kid under the bus at that point). > > So where does an attorney go with this? Not sure there is a good out in this case assuming you (the attorney) have excellent reason to believe your client is truly innocent and taking a fall intentionally. You are not supposed to perpetrate the lie on the court, you are supposed to advocate for your client’s best interests, your client is taking the rap but hoping somehow you can get them acquitted. > > Yep…fringe stuff. But interesting as a thought experiment. That or I should write court drama (e.g. things that never actually happen in court but gets good TV ratings). I get that - it is a really interesting question. I’m not a criminal defense lawyer, but the problem I have with this is that it drops me into a situation that I just can’t possibly imagine how I would have arrived there in an ethical matter… If he changes his plea to guilty, the trial shifts into a different phase. I am in the realm of pure speculation here, but I imagine my course of action there would be working with the DA (without violating client confidentiality, unless that is permitted for some reason) to try to convince him that the new plea had been coerced in some fasion or was unreliable. Because we know the DA isn’t just looking to get a win in the case and wants to convict the real perpetrator. 😛 Assuming that doesn’t work, I am thinking that my next step would be some kind of mental health type proceeding - probably not going to work either. None of this answers your interesting poser, however. I’m just not sure how to do it in a vacuum. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 21, 2009, 2:37pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/47 "2009-05-21T14:37:22Z")
> [@Skald\_the\_Rhymer](#): > > That I won’t do. He’s entitled to a vigorous and competent defense, not a lying defense. That would cover the “appeal to stupidity” defense, but there’s also the “appeal to the prejudice/sterotype” defense. I believe this is routinely done to some degree or another, in recognition of human nature being what it is. For example, in having defendants showing up looking as respectable as possible, in suits etc. But it can also be taken to an extreme, e.g. [Richard Scrushy](http://www.businessweek.com/bwdaily/dnflash/jan2006/nf20060120_4440_db016.htm). ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [May 22, 2009, 3:02pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/48 "2009-05-22T15:02:31Z")
> [@Telemark](#): > > Then you’d be in the wrong profession to begin with. Yeah, you’d be right about that. > [@Hello\_Again](#): > > “Simply?” You can’t be a defense attorney AND a DA AND a judge AND a jury all at the same time. Let’s just say, our founding fathers had this idea that concentrating every type of power in one individual was a really bad idea. Sure, lawyers-types are drunk with power and all, but that’s a lot to take on even for them. > > You’ want to be a vigilante? Well, saddle up the Batmobile and go to town. But what you have described is in no way a “lawyer’s job.” Well, in this hypothetical scenario, if doubt was nearly certain, what good would it do anyone to let a guilty man go free or defend him to the best of my ability? We have judges and juries and laws defined broadly because it is the best way to decide guilt for the majority of situations. But if somehow we can know who’s guilty and who’s not, and in my example I am pretty sure of guilt, then there’s no benefit not to act as judge and jury > [@MandaJo](#): > > Is a complete stranger allowed to do this for you, or for your loved ones? Look at the evidence and decide for themselves (after careful consideration) whether or not they are guilty and then sabotage you or your loved one’s case? Depends on whether I or my loved ones are guilty or not. If we are, then I can’t really fault him for it. If we’re not, then I would be pissed, but no more pissed if he didn’t sabotage the case and a jury still convicted me. To me, there are no moral victories if I or my loved ones are stuck in jail Just so we’re clear though, even if I or my loved ones were guilty, I would still want them free. My freedom and that of my loved ones means more to me than the law, so I’ll cheat, bribe, threaten, or flee to keep them out of jail > [@MandaJo](#): > > Would you be ok with getting rid of the whole court system/all criminal lawyers and allowing certified and then elected judges to investigate and just make the call on who is guilty? If you don’t trust trained and democratically elected people with that sort of power, why should you be allowed to have it? I’m not a lawyer, and I would be the first to admit that I would totally abuse my power. I’m not for getting rid of the whole system though, since my example only covers a very narrow scenario I may sound like a facist but what I’m really trying to get at is that in general, the law is good and I follow it. The court system set up right now is great, even though its not perfect. It covers a very broad range of behaviors and scenarios that I couldn’t even begin to imagine. In this way, it guarantees the most justice for the most people. However, I believe the way I believe because I also happen to believe the whole reason we have a very broad justice system is to get at the truth and make things fair and do good. We dont have these laws simply for fun, they are meant to be good laws. So in a case where the spirit of the law demands justice, but the letter of the law cannot provide it, I would have no problems breaking the letter to achieve the spirit The objection you guys have is noted: If EVERYONE did this, or if one person was designated to do this, the system would not achieve justice. I understand that. But in a specific instance, I have no problems breaking the law to achieve the goal of justice ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 22, 2009, 3:09pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/49 "2009-05-22T15:09:33Z")
> [@YogSosoth](#): > > I may sound like a facist but what I’m really trying to get at is that in general, the law is good and I follow it. The court system set up right now is great, even though its not perfect. It covers a very broad range of behaviors and scenarios that I couldn’t even begin to imagine. In this way, it guarantees the most justice for the most people. However, I believe the way I believe because I also happen to believe the whole reason we have a very broad justice system is to get at the truth and make things fair and do good. We dont have these laws simply for fun, they are meant to be good laws. So in a case where the spirit of the law demands justice, but the letter of the law cannot provide it, I would have no problems breaking the letter to achieve the spirit > > The objection you guys have is noted: If EVERYONE did this, or if one person was designated to do this, the system would not achieve justice. I understand that. But in a specific instance, I have no problems breaking the law to achieve the goal of justice Would you be equally okay with a cop planting evidence to convict a defendant he strongly believes is guilty, or a prosecutor witholding exculpatory evidence to convict a defendant he strongly believes is guilty? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 22, 2009, 3:25pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/50 "2009-05-22T15:25:56Z")
**Yog Sosoth** , the point is that _no lawyer ever defends a ‘guilty’ man in a criminal trial_. This is not nitpickery – the accused is presumed innocent until proven guilty. It’s the defense attorney’s job to ensure that he gets a fair trial. He may well have committed a criminal act of some sort – but he is **not guilty** of the crime charged until either he pleads guilty or a judge or jury finds him guilty at trial. To give you an example, suppose a man lost in the woods comes on someone’s vacation camp, enters, and makes use of it to refresh himself and seek help. If the camp owner chooses to be a dick about it, he can press charges for criminal trespass, possibly breaking and entering, and maybe even burglary, depending on how the laws are written. The lawyer’s job is to show that his client had no criminal intent and did only what was necessary to save his own life and health, eliminating the serious charges and perhaps arranging a plea bargain to a petty-offense trespass plea with a $50 fine. While the DA should in theory not be bringing the more heinous charges, it’s easy to set up a scenario where the camp owner has political clout the DA cannot ignore. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 22, 2009, 3:30pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/51 "2009-05-22T15:30:12Z")
> [@Polycarp](#): > > **Yog Sosoth** , the point is that _no lawyer ever defends a ‘guilty’ man in a criminal trial_. This is not nitpickery – the accused is presumed innocent until proven guilty. Legally, not morally. No one is suggesting that anyone is committing a crime by defending these “innocent until proven guilty” people. It’s a question of whether it’s the right thing to do. So the fact that the legal system (rightly) treats everyone as innocent until proven guilty is not relevant. Personally I suspect that a lot of lawyers would not defend certain criminals that they find repugnant, even though they would defend others who are “guilty” of lesser crimes, and that it’s really a question of where to draw the line. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 22, 2009, 3:36pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/52 "2009-05-22T15:36:02Z")
I draw the line where I am capable of providing a good defense. I probably wouldn’t be capable of adequately defending a person accused of nailbombing a gay bar, or torching a synagogue unless I was personally convinced of their innocence. Therefore I have an ethical duty to not take the case. I could probably work on the case if my contribution was limited to the constitutionality of the hate crimes penalty, for example, but I couldn’t handle the case in chief. Similarly I could appeal the death penalty for anyone, but I wouldn’t feel I could provide adequate defense to a person charged with murder for bombing an abortion clinic (again, unless I was convinced of their factual innocence). ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 22, 2009, 3:45pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/53 "2009-05-22T15:45:46Z")
Now that I think about it, it could be that some lawyers are reluctant to take really repugnant clients for more practical reasons - because they’re afraid the public will fault them for it, or even taint them by association. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 22, 2009, 6:00pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/54 "2009-05-22T18:00:18Z")
> [@Fotheringay-Phipps](#): > > OK, but what about #s 3 & 4? > > Your example is about legal aspects, but I was thinking more along the line of factual ones. Where the two sides disagree about what happened, and your job as a lawyer is then to claim that your client’s version is what happened, even though you don’t actually believe it did. > > Does “well founded in law and fact” imply that it has to be most likely actually true, or could “could conceivably be true because you never know” suffice? And what about a lawyer who believes their client, then learns in the course of discovery that their client is wrong on the facts, whether intentional or not? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [May 22, 2009, 6:30pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/55 "2009-05-22T18:30:24Z")
How’s your quest for legal information going, stoid? ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 22, 2009, 6:41pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/56 "2009-05-22T18:41:18Z")
I might have missed the clarification, but is the contention here that the lawyer has an ethical duty to try his best to prevent his or her client from being convicted? Because I don’t think that’s actually correct, I think that’s the assumption and distortion that has arisen out of what the lawyer’s real ethical duty is, which is to provide a vigorous defense. A lawyer’s duty is first to the law. The law doesn’t state that everyone has a right to escape conviction for crimes they committed, the law says everyone has a right to defend themselves and, thanks to Clarence Earl Gideon ( a self-represented criminal who appealed to the Supreme Court, you go, Clarence!), every criminal defendant has a right to an attorney, even if they cannot afford one. Nowhere in there is there anything about escaping conviction or punishment for crimes actually committed. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 22, 2009, 6:45pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/57 "2009-05-22T18:45:22Z")
> [@Rumor\_Watkins](#): > > How’s your quest for legal information going, stoid? Superbly, thank you. I finally found the answer I was seeking, and as I type this I am next heading downtown to the law library to get more information about that answer. All I ever really need, it turns out, is concepts…phases, words. Once I know how the law has named things, finding the answers becomes a snap. My struggle has been over finding out how the law defines and names things. I love the law, I really do. It has never let me down. Lawyers have. Judges have. But the law itself, what’s on the books and in the cases…that’s amazing and wonderful. The answers are always there somewhere, if you just know what you are looking for. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [May 22, 2009, 6:53pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/58 "2009-05-22T18:53:59Z")
> [@Stoid](#): > > A lawyer’s duty is first to the law. No, it isn’t. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 22, 2009, 6:54pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/59 "2009-05-22T18:54:22Z")
Just a little extra regarding a lawyer’s duty. The comment to the ABA’s Model Rules of Professional Responsibility, Rule 3, Diligence: > [@](#): > > [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take **whatever lawful and ethical measures** are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [May 22, 2009, 6:58pm UTC](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852/60 "2009-05-22T18:58:35Z")
> [@Stoid](#): > > Just a little extra regarding a lawyer’s duty. The comment to the ABA’s Model Rules of Professional Responsibility, Rule 3, Diligence: You demonstrate an amazing ability to stop reading once you find something that you believe supports your point. Keep going down the preamble, possibly focusing on #9 [Previous page](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852.md?page=2) [Next page](https://boards.straightdope.com/t/legal-ethics-questions-scenarios/496852.md?page=4)