Newsgroups: bit.listserv.ethics-l
Date:         Wed, 22 Jul 1992 08:29:46 EDT
Comments:     Warning -- original Sender: tag was ETHICS-L@POLYVM
From:         JFCOVALE@SUVM.BITNET
Subject:      Re: Legal Ethics question

The question of the ethical thing for a lawyer to do when she has information
that will (1) save a life and (2) damage her client's interests (for the
exercise we exclude trap doors like 'shouldn't the doctor do it; such evades
the question, which cannot always be avoided in law, or life) has stimulated
the best discussion here since I've joined the list.
It seems to me that the question points to one of the fuindamental paradoxes
created by our legal system: if the lawyer harms her client's interests, she is
acting against the ethics of her profession; if she lets the plaintiff die
when she could prevent it, she is acting against the ethical constraints the
rest of us consider part of out humanity.  This both explains the contempt
many of us have for lawyers (in order to be ethical they must act in ways
we consider to be unethical, indeed, reprehensible).

But this because our system of justice is based on an adversarial presumption:
the job of the defense is to defend, and the job of the prosecution (or
plaintiff's atorney) is to prove an accusation.  The consequentialist
argument is that the system will not work unless both sides do their best
within those rules.  The harm to all will be greater under such circumstances
than the harm to individuals in the rare cases such as the one under consid-
eration.  The deontologists in the crowd will contend that the lawyer must do
her duty though the skies may fall, but will disagree whether her duty is to
be a good lawyer or a good human being, since in this case they conflict
(unless one concludes that, having chosen to be a lawyer, being a good human
being requires being a good lawyer).  An Aristotelian would argue that the
lawyer should do the right thing, but that is the question at hand.  In
updating the Aristotelian idea, Noddings suggests that we should do the
caring thing, which leaves open the question, caring for whom?  client or
the plaintiff?  Perhaps, the one in the greater need?

I am sorry that this is already overlong, but one final point: the reason
our system seems so odd sometimes is that we are concerned with procedural
justice rather than substantive justice: we want to make sure that things are
done properly, rather than to make sure that the right outcome results.  But
that too is a basic outcome of a system which preumes open-mindedness at the
beginning of a judicial proceeding: we cannot judge the proceeding by the out-
come, since the purpose of the proceeding is just to find out what the outcome
should be.  We can't then turn around and judge the proceeding by saying that
we got the wrong outcome: if we knew what the outcome was supposed to be, we
would not need the proceeding.

On the question at hand, it seems that the right thing is to see that the
plaintiff gets warned in one way or another.  Perhaps that can be done after
the case is settled, but I assume that the case is supposed to also deny me
that out.  I think that I could in that case (1) try to convince my client to
inform, (2) resign as defense attorney, and (3) inform the plaintiff.  I
am probably violating the canon of legal ethics in so doing, and perhaps
even the law.  But that seems the force of the case: are we only expected to do
the right thing when it is easy and there is no cost?  There seems little
doubt that to let the plaintiff die would be wrong.

I am sorry for the lenghth of this, but the question is so rich...

I to would like to hear from a lawyer on this, if there are any available.


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