NCJ Number
99381
Journal
Criminal Justice Ethics Volume: 3 Issue: 2 Dated: (Summer/Fall 1984) Pages: 8-14
Date Published
1984
Length
7 pages
Annotation
Following a discussion of M.H. Freedman's (1984) analysis and weighting of conditions which might justify exceptions to the confidentiality of lawyer-client communications, difficulties with ethical codes in general and those proposed by the American Bar Association (ABA) and Freedman in particular are identified and an alternate approach to professional ethics is suggested.
Abstract
While Freedman's reordering of the ethical priority to be given to various exceptions to confidentiality seems quite reasonable, it suffers from the same problem that the ABA model rules have. Both assume that the way to guide legal practitioners in moral matters is to devise and teach an enforceable code of ethics. While superior to the ABA rules, Freedman's exceptions need not always be exceptions, nor need they be ordered in the way recommended, dependent on the context and the weight of other factors. Further, the exceptions are not exhaustive. While codes of conduct can perhaps help enforce standards of minimally decent conduct, they cannot serve the function of exclusive or even primary moral education and guidance. As a substitute for such codes, reasonable training in ethics should be required. Lawyers should learn the reasons why confidentiality, for example, generally should be maintained. They should acquire extensive experience in reasoning and arguing about complex moral cases and learn to identify and weigh reasons in favor of a course of learn to identify and weigh reasons in favor of a course of action. Lawyers can be taught to recognize inconsistencies in reasoning, judgments based on prejudice, and conclusions based on insufficient grounds. Lawyers trained in this way, if morally well intentioned, could be better trusted to act ethically than could those bound by the rules of a code and uncritically imbued with the model of zealous advocacy in their legal with the model of zealous advocacy in their legal training.