{"id":18466,"date":"2012-09-13T12:43:42","date_gmt":"2012-09-13T17:43:42","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=18466"},"modified":"2012-09-13T12:43:42","modified_gmt":"2012-09-13T17:43:42","slug":"from-the-inside-out-a-law-students-perspective","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/09\/from-the-inside-out-a-law-students-perspective\/","title":{"rendered":"From the Inside Out\u2014a Law Student\u2019s Perspective"},"content":{"rendered":"

\u201cThe Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.<\/em>\u201d\u00a0<\/p>\n

\u00a0–Oliver Wendell Holmes Jr., The Path of the Law<\/em><\/p><\/blockquote>\n

While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes\u2019 words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law<\/a><\/em>, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of \u201cthe bad man\u201d who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one\u2019s actions. From this perspective, the lawyer better positions himself to protect those interests that \u201cthe bad man\u201d might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, \u201cquestionable\u201d assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice<\/em> and prediction<\/em> is a hallmark of Holmes\u2019 pragmatic view of the law with experience at the foundation.<\/p>\n

Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to \u201cthe infinite\u201d in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes\u2019 candid admission. Nonetheless, I found Holmes\u2019 position to be \u201creasonable\u201d and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences.<\/p>\n

I first considered writing on legal ethics during my sophomore year at DePauw when I became inspired by a particular dilemma raised during the 2008 regional Ethics Bowl competition, a team-based philosophical debate. This dilemma is nothing new to the legal community: your client admits to a murder that another lawyer\u2019s client is on trial for. Your actions as an attorney are governed by Rule 1.6(a)-(b) or the corresponding ethics rule of your state, and underlying policy considerations for confidentiality. The natural question became, \u201cWhat will you do in this situation?\u201d Simply put, I felt that I needed more than five to seven minutes of speaking time before a panel of judges to adequately address the implications (and ramifications) in handling this dilemma. Personally, there was a deeper tension within this question that I wanted to somehow voice and then thoroughly examine.<\/p>\n

Moreover, when reading the stories of wrongfully incarcerated individuals such as Alton Logan and Lee Wayne Hunt, see People v. Logan<\/em>, 224 Ill. App. 3d 735, 586 N.E.2d 679 (1991); see also State v. Hunt<\/em>, 357 N.C. 257, 582 S.E.2d 593 (2003); also<\/em> Jeff Deskovik, Lee Wayne Hunt Revisited,<\/em> The Westchester Guardian (2007-2008)<\/a>, the hypothetical turned into a disturbing reality. Overall, it was obvious that a divide exists between what some might consider as \u201cobjective morality and ethics,\u201d and \u201cprofessional ethics.\u201d Setting aside the notion that what is \u201cmorally right\u201d is not always \u201clegally ethical,\u201d my study of legal ethics introduced me to the dual roles of the lawyer: the officer<\/em> and the advocate<\/em>.<\/p>\n

Among many sources I consulted on the dual roles of the lawyer, I found Professor Roberta K. Flowers\u2019 work The Role of the Defense Attorney: Not Just an Advocate<\/a><\/em>, 7 Ohio St. J. Crim. L. 647 (2010), to be most helpful in closely outlining these roles. Professor Flowers characterized the role of the officer through the following duties:<\/p>\n

[R]especting the need for truth and truth-seeking within the confines of the adversary system . . . [, maintaining] a duty of candor to the court and others . . . [,] required to make decisions that reflect [this] respect for the truth-seeking function of the trial process . . . [and] required to refrain from involving himself in misrepresentation, fraud, and dishonesty.<\/p><\/blockquote>\n

7 Ohio St. J. Crim. L. at 647-48. Particularly as an officer, the lawyer is instrumental to preserving the interests of the adversary system, aiding the effectiveness of the trial process through his or her knowledge of procedure and the law in general, and overall seeking to ascertain the \u201ctruth.\u201d As a system-centered role, the officer has a duty to avoid, and seek to remedy, negative activity that would result in the devaluation of the trial process and overall hindrance of justice being carried out. In short, a \u201charmony\u201d between the bar and bench, between the officer and system, must be maintained. See id.<\/em> at 649 (quoting Chief Justice Marshall in Ex parte Burr<\/em>, 22 U.S. 529, 530 (1824)).<\/p>\n

In contrast, the role of advocate is mainly client-centered, placing the interests of the individual as fundamental to the lawyer\u2019s motivations and actions, greatly reminiscent of Holmes\u2019 pragmatic approach. As an advocate, the lawyer uses his or her knowledge of the law to protect and support the client\u2019s interests reasonably within the bounds of the law. Id<\/em>. at 648. An attorney\u2019s intimate knowledge of the law provides \u201csafer\u201d passage through the adversary system, protecting the client from the overwhelming power of the state or other interests (at least, from a criminal perspective).<\/p>\n

In addition to the officer and advocate roles, the Preamble of the ABA\u2019s Model Rules<\/a> includes the role of the public citizen<\/em>. However, because I found the former mentioned roles to be, more so, institutional or system based, in which aspects of the dual roles are heavily emphasized and central to the practice of law, my focus in the early part of my study and thesis writing became to further define these two roles and attempt to understand them at a deeper, philosophical level.<\/p>\n

At the foundation, these roles are based upon a collection of duties not necessarily defined by abstract philosophical ideals or categorical imperatives. Within the roles of officer and advocate, \u00a0a range of duties include advising<\/em> with an informed legal understanding, asserting<\/em> the client\u2019s position, negotiating<\/em> on the client\u2019s behalf, evaluating<\/em> the client\u2019s legal affairs, all while upholding the rules and merits (or values) of the adversary system. The lawyer must learn all of the facts surrounding a case, keeping confidences, while maintaining \u201ccandor\u201d or honesty to the court. Through these obligations, the lawyer works within the system as an intermediary<\/em> between the law (governing bodies, codes, etc.) and the people who find themselves in contention with it. In turn, these duties serve a seemingly inherent good in the promotion, protection, and perpetuation of the system and those subject to it.<\/p>\n

At the time I was researching and writing my thesis, my limited understanding of these duties led me to believe that the advocate\u2019s client\/interest-centered obligations outweighed the duties of \u201ccandor\u201d and maintenance of the profession that the officer owes to the system. Indeed, these were the conclusions I drew from my study, looking from the outside in as a critical undergraduate student. I questioned how these roles, which seemed outright antithetical to one another, could be realistically balanced when even an undergraduate student could notice a heavy lean towards the more tangible goals of \u201cadvocacy,\u201d and the more so theoretical goals tied to justice values as an officer. And yet, the critic may argue that the officer \u201cadvocates\u201d on behalf of the system and overarching justice values, where theoretical interests are still just that\u2014interests, a mere side of an adversarial equation.<\/p>\n

Returning from these thoughts, I desperately wanted to force theory to remain in conversation with practice. Therefore, I re-examined the Ethics Bowl hypothetical and asked the question, \u201cWhat do the roles of officer and advocate require me to do?\u201d If I had knowledge that my client committed a murder that another lawyer\u2019s client is being convicted of, what options do I have? Although Rule 1.6 requires the lawyer to maintain client confidences, hence the duty of the advocate, I wondered whether the role of the officer required something more for the sake of justice. Or does the officer\u2019s silence uphold the greater tenets of the adversary system\u2014the need for confidentiality? And what of the exceptions to this rule? Could they be made to answer these questions? I believe this dilemma exposes a conflict between the duties of the officer and advocate, a need for reconciliation. \u00a0<\/p>\n

Nearly two years ago, I wrestled with these questions from outside of the profession, looking in. Today, as a law student looking from the inside out, I know now that I have much to learn. I understand the need of our adversary system to protect itself for the sake of perpetuation, legitimacy, and (what some may consider) the lack of a viable alternative. Still, I continue to wonder whether an obvious emphasis on the advocate\u2019s duties is an over-extension of Republican Ideals (in the Jeffersonian sense of the word), which greatly fueled the framers\u2019 intentions in forming our government. If the advocate is a product of a healthy fear of tyranny of majority, state, or otherwise, then at what cost? Perhaps the officer\u2019s role may suffer, creating an imbalance in ethical duties.<\/p>\n

Then again, I wake up from this ethical nightmare, grab my casebook, and read chapter 2.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cThe Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.\u201d\u00a0 \u00a0–Oliver Wendell Holmes Jr., The Path of the Law While writing […]<\/p>\n","protected":false},"author":143,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,72,122],"tags":[],"class_list":["post-18466","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-legal-ethics","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18466","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/143"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=18466"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18466\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=18466"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=18466"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=18466"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}