Ethical Behavior in an Unethical System

It may be surprising to those who hold with the popular, cynical view about lawyers, but law schools require students to take an ethics course (sometimes called “Professional Responsibility”) and pass an ethics portion of the bar exam prior to being licensed as an attorney. For all of the images of lawyers as greedy, selfish, despicable creatures who will bring about all manner of misery through all sorts of distortion of truth (and there are plenty of real-life examples, no doubt), I know many attorneys who take their roles extremely seriously.

I once heard a US District Judge in the Midwest relate her experience of being nominated to the position. In preparation for an official nomination, she met privately with the governor. A general question was asked about any possible ethics issues that might arise during the nomination process. She admitted to the governor: “If you ask people I practiced with, you will get all sorts of stories about how mean I was, how rude, how harsh, abrasive, profane- and those stories are all true. But I never, never, acted unethically.” I’m not sure why- maybe it was the way she told the story- but the value that attorneys can and should place on ethical behavior struck me hard when I heard this.

In writing this entry about Legal Ethics, I found most of my examples relating to war. My drafts included discussions of Just War Theory and the Nuremburg Defense to explain why Role Morality was initially appealing but ultimately unsatisfying. I thought this woefully off-topic, but perhaps it is entirely appropriate to the adversarial system of law we have in the United States. Jurist Jerome Frank compared this adversarial trial process to “throwing pepper in the eyes of a surgeon during an operation.” I am generally inclined to agree, although drastically better alternatives that can be smoothly implemented do not readily present themselves. Some argue that when both defendant and prosecutor do their best to twist and spin testimony at trial, the system ultimately sorts out their efforts to arrive at the just conclusion. One problem is how often at least one side gives something less than their best effort, or how often the best efforts of each side are unfairly mismatched.

Ultimately, I don’t like Role Morality. I don’t like it generally and I don’t like it specifically for attorneys. But my rejection of it raises an issue: If the faithful fulfillment of roles within the Justice System cannot be an acceptable moral code, can an acceptable moral code be found within the Justice System? If this System cannot be altered, can one behave consistently (with rules extending beyond a “case-by-case” basis of evaluation and action) and ethically? If I know me, my answer is a Virtue Ethics burrito filled with a Kantian reading of Aristotle and generous amounts of sliced Kierkegaard, with some Derrida and just a pinch of Foucault.


For more information on Role Morality, this quick video does a good job:


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