Term Paper: Attorneys of Every Ilk

Pages: 15 (4100 words)  ·  Bibliography Sources: 5  ·  Level: Master's  ·  Topic: Business - Law  ·  Buy This Paper

SAMPLE EXCERPT:

[. . .] The ethical problem concerned the baby's mother, who was incompetent to make the decision to withdraw care.

Can an attorney go against his or her ethical standards when faced with a person who is a mentally impaired decision maker? That is the question addressed by this particular piece of literature. The ethical problem concerned the baby's mother, who was incompetent to make the decision to withdraw care.

This particular woman did not wish to 'pull the plug' on her child, though the doctors felt that preserving the life of the baby would only ensure that the baby lived in a vegetative state for what remained of the child's time here on earth. The article presented the fact that the woman in this case was mental disabled and in reality could not effectively make a life and death situation such as this one. This article is an excellent example of a scenario of ethical concern for the attorney.

The article provides information of a unique situation that could possibly justify an attorney to go against the client's wishes. However, the article does not state what the attorney decided to do. That the article provides no substantial answers to the dilemma is an ongoing concern throughout current literature that also presents situations and circumstances for ethical consideration, yet does not provide answers as to how the attorneys acted during the situation(s).

An additional study is another example of providing ethical fodder with no solution at hand. With the many corporate scandals occurring during the last decade (Enron, Tyco, WorldCom, etc.) the question remains regarding any ethical standards that needs to be considered by corporate attorneys who may have some knowledge of exactly what is taking place as some companies engage in illegal behavior. This article covers a symposium held to address that particular question, and the lawyers attending the symposium presented the view that "even if the lawyers (in these cases) did not perform as we would wish, it does not necessarily follow that we should radically alter time-honored principles of professional responsibility" (Dent, 2007, p. 338).

The symposium also considered to whom the attorney has allegiance; is it the corporation, the shareholders, the entity or the public? Ethically speaking, the attorney is often placed in the middle of a maelstrom of responsibility. Is the ethical attorney the one that keeps the actions of the corporation to him or herself, or is the ethical attorney the one that provides the information to the shareholders and the public? Again the study does not espouse a certain action, only presents the situation.

It is likely that a strong argument can be made from both sides of the issue. The ethical attorney most likely is the one-based entirely on who is doing the judging.

Situations have been presented on a variety of ethical levels, however none are as likely to be as ethically compelling as when a decision will affect how a couple proceed in a divorce situation.

Many divorce attorneys are faced with ethical considerations that are potentially fraught with unforeseen (and in some cases quite disruptive) consequences for children of parents seeking a divorce. One of the ethical considerations prevalent in these circumstances is the use of an alternative dispute resolution (ADR). The use of an ADR in divorce proceedings seems to be lagging the use of ADR's in other legal areas, and this discrepancy may lead to sometimes dire results (Vu, 2009, p. 585). The article purports the fact that "by emphasizing cooperation and negotiation among the divorcing parents, both mediation and collaborative law offer these would-be litigants the opportunity to move forward with their parental duties" (p. 586). According to the article, attorneys should be required to follow uniform ethical requirements in divorce proceedings.

Once again, ethic requirements and standards for attorneys will be set by other individuals. One thing that has become abundantly clear by a research of the data is that there are any number of situations that will require the attorney to stand beside his or her principles and core beliefs, which brings into play a reality check for most attorneys, especially if they have no loyalty to the firm or client they are working with when the situation arises.

This is true for attorneys who have been with a specific firm for a number of years, but it is also very true for those attorneys who are working for a particular firm on a temporary basis. In 2010, R.C. Rodriguez brought to the forefront the situation concerning temporary attorneys and the firms for which they are employed, both the previous firms, and the firms for which they currently are employed.

The situation is especially troubling during times when the economy is bad, thereby causing many law firms to hire attorneys on a temporary basis. According to the article, the problem that is presented is a possible conflict of interest between former and current clientele. Another problem concerns the disclosure or use of information regarding certain cases or clients. The problem is being addressed by various governmental entities that look to present guidelines and methods for information containment, disclosures etc. The article purports that both the hiring firm and the temporary attorney are responsible for instituting safeguards against the use (or misuse) of the information.

An article written my Monroe Freedman for the Michigan Law Review frames the question of legal ethics in three questions.

Only one of the questions is relevant to this paper, the question is "Is it proper to put a witness on the stand when you know he will commit perjury?" (Monroe, P. 1469).

This relates to the thesis of this paper in a number of interesting ways. Other than the fact that committing perjury is, in fact, a crime, the decision to prevent or allow a client from perjuring is similar to the decision to betray a client's confidence.

After all, if the client intends to perjure, he is more than likely trying to save himself from the hangman's noose by lying about his crime. Should the lawyer then release information about his client's guilt when he intends to perjure himself?

Freedman, in an arresting argument, points out that, "[t]here is a clear consensus among prosecutors and defense attorneys that the likelihood of conviction is increased enormously when the defendant does not take the stand. Consequently, the attorney who prevents his client from testifying only because the client has confided his guilt to him is violating that confidence by acting upon the information in a way that will seriously prejudice his client's interests." (P. 1475)

Therefore the decision to allow or disallow perjury from one's client is indeed linked to client confidentiality. Freedman meanders his way through various alternatives to putting the client on the stand. During one arc, he muses on the affects of simply telling the judge that the client intends to perjure himself, while asking to be relieved. The request "is certain to be denied, if only because it would empower the defendant to cause a series of mistrials in the same fashion." (P. 1477). After half a dozen circumstances, he eventually reaches a conclusion. His conclusion is that all other alternatives result in either a retreat from ethical considerations (withdrawing from the case comes to mind) or a transfer of ethical considerations. Both are unacceptable to his mind. The question then becomes, how does one ethically allow a client to perjure himself?

One article provides an interesting framework from which to think of ethical issues in the legal field. "When The Lawyer Knows The Client Is Guilty" creates a paradigm of "soft vs. hard adversarialism" (Asimow, P. 238).

In the context of this article, soft adversarialism is preventing the client from perjuring by informing the judge of the client's intent to do so. Soft adversarialism thus values things "such as the truth-finding function of trials, the obligation of candor toward the tribunal, and the need to protect the reputation of truthful witnesses and the interests of other third parties who may be damaged by the litigation." (P. 236) Soft adversarialists believe that a defense lawyers' goal is not to protect his client from punishment, but to give the client his due-process. This is the highest goal of a defense lawyer, and allowing a client to perjure is a corruption of this process, thus preventing the lawyer from doing his duty.

Hard adversarialism, on the other hand, is the mirror image of soft adversarialism, in that it does not value truth as highly as it does the client's welfare. Indeed, the credo of the hard adversarialist is that the "defense counsel has no ... obligation to ascertain or present the truth. . . . [W]e also insist that he defend his client whether he is innocent or guilty." (P. 235) Thus the goal of a defense lawyer… [END OF PREVIEW]

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Attorneys of Every Ilk.  (2010, November 28).  Retrieved April 20, 2019, from https://www.essaytown.com/subjects/paper/attorneys-every-ilk/5512454

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"Attorneys of Every Ilk."  Essaytown.com.  November 28, 2010.  Accessed April 20, 2019.
https://www.essaytown.com/subjects/paper/attorneys-every-ilk/5512454.