Bryan Caplan  

Lame Excuses: What's Wrong With the Adversarial System

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Mike Huemer, my favorite philosopher, has a new working paper on the ethics of legal advocacy.  Lawyering may never be the same, for Mike challenges the central dogma of the adversarial system: Lawyers should use all legal means to help their client win.  (Except prosecutors, who are already held to a higher standard).  Mike begins by pointing out that the adversarial system obligates lawyers to act in ways that would plainly be wrong for non-lawyers:
Consider the following hypothetical scenario, which I shall call the case of The Murderer's Friend:
Sally and Joe have known each other for a few months and have become close friends. One day, after securing a promise of confidentiality from Sally, Joe finally confesses to Sally his darkest secret: he is a serial murderer. He has murdered six people so far. He asks Sally for advice about where to hide the body of his latest victim. Sally tries to convince Joe to stop murdering people and, moreover, to turn himself in. Joe refuses to turn himself in and remains noncommittal on future murders. Sally, good friend that she is, keeps Joe's secret and offers Joe helpful advice on how to elude the police.
I take it that most people would not even consider behaving in the manner of Sally in this example. There are two aspects of Sally's behavior that mark it as extremely wrongful.

First, it is wrong for Sally to keep Joe's secret; in so doing, she allows Joe, unjustly, to get away with his crimes, and she countenances an unacceptable risk of death for innocent others, due to the likelihood that Joe will kill again. Sally is morally obligated, instead, to turn Joe in to the police.

Second, it is even worse for Sally to actively assist Joe by giving him advice on how to elude the police. Here she not merely allows serious injustices to occur but actively promotes them.

My concern here is an ethical, rather than a legal one. The point is not that Sally would be legally required to report Joe to the police. The point is that Sally would be morally required to report Joe and not to aid him. This would be true even if Sally lives in a legal system in which such reporting is not required. Sally's obligation here does not result
from any special relationship she has with Joe, nor any special role she has taken on. It is simply a requirement for being a decent human being.
So why should we hold lawyers to a different standard?  The Argument from Uncertainty is not only wrong, but silly:
Some defenders of Devil's Advocacy appeal to a kind of external-world skepticism: it is said that a lawyer can never really know that a client is guilty. Even a client who confesses to his attorney might be lying, that is, there is a nonzero probability of this. Perhaps the client has falsely confessed because he is mentally disturbed or is protecting someone else...

This is a strange argument. Typically we do not eschew the pursuit of justice or any other value merely on the grounds that we cannot be 100% certain of what will promote or thwart the goal. In the case of the Murderer's Friend, surely Sally could not be excused for disregarding the demands of justice and the welfare of innocent third parties merely on the grounds that she was not 100% certain that Joe was really a serial murderer.
The "Better to let X guilty men go free rather than convict one innocent" argument may be true, but it evades the key moral challenge:
The interesting cases are those in which the lawyer is convinced beyond a reasonable doubt that the client is guilty - or, more to the point, the probability of the client's being guilty, on the attorney's evidence, exceeds whatever ought to be the appropriate threshold for convicting a person of a crime. In this case, the argument that "it is better to let many guilty persons go free than to convict one innocent person" cuts no ice, since that point has already been taken into account in identifying the appropriate evidentiary threshold, which we have stipulated that the lawyer's evidence surpasses.
The Arguments from Friendship and Contractual Obligation are lame:
Some view the lawyer as like a friend to his client. Often, a person will support a friend's cause, even when the friend is in the wrong. And to some extent, we may regard this as morally acceptable, even virtuous - specifically, as a manifestation of the virtue of loyalty. If a friend has overparked at a parking meter, it would not be virtuous to hail the traffic enforcer to ensure that your friend receives a ticket.

But while the virtue of loyalty may license some degree of disregard for impartial justice in the service of one's friends, this license must be quite limited. It was in light of this thought that I mentioned the friendship between Sally and Joe in the Murderer's Friend case. In that case, Sally is a friend of Joe in a clearer sense than a lawyer is a friend of his client. Yet this hardly excuses Sally's complicity in Joe's heinous crimes. Whatever moral value there may be in Sally's show of loyalty, it does not come close to outweighing the moral importance of stopping a serial murderer. The same would seem to hold for many lesser but still serious crimes.

In addition, there is, as D'Amato and Eberle put it, "certainly something strange about an instant friend whose friendship is purchased by paying a retainer." While a preexisting close relationship may create certain ethical prerogatives to act partially on behalf of a particular person, it is implausible that such prerogatives are established by one's simply hiring someone specifically to help one escape justice.

Return to the case of the Murderer's Friend. We have already said that Sally's friendship with Joe does not seem to override her obligation to report Joe's crimes. Now suppose we add the following: Joe pays Sally $20,000 to keep quiet and to help him elude the police, and Sally accepts the money. Does this strengthen Sally's moral position, such that her
failure to report Joe is now ethically justified?
The "I'm Just Doing My Job in the Adversarial System" Argument is wrong.
The main argument, according to most proponents, appeals to the role of a lawyer in an adversarial justice system. It is simply the job of a lawyer to represent his client's interests, regardless of where he believes true justice in the given case lies. If one is unable or unwilling to perform this function, then one has no business being a lawyer (or perhaps one is qualified only to serve as a prosecutor).

By themselves, however, observations about the responsibilities attached to a particular job carry little weight. It is equally true that it is the job of a mafia hit man to murder those whom the Boss targets for elimination, and that those who are unwilling to do this have no business being hit men. But this does nothing to justify murders carried out by hit men. If a particular job description includes activities that we are antecedently convinced are morally wrong, the mere introduction of employment opportunities for people who perform those actions will do nothing to render them permissible; normally, it will simply mark the jobs in question as immoral jobs.
Lawyers should not have "faith in the justice system":
No doubt, the system usually works as intended, to punish the guilty and acquit the innocent. But there are cases in which it fails, and a lawyer can certainly be justified in suspecting that he is presently involved in such a case. This might occur, for instance, because the lawyer is privy to incriminating evidence of which the prosecution is ignorant, because the lawyer is in a position to take advantage of emotional reactions or other prejudices of the jury, or simply because the lawyer is more skilled than his counterpart on the opposite side. Of particular import, it is certainly possible, and must happen fairly often, that a lawyer is justified in attaching a nontrivial credence to the proposition that his own zealous advocacy will prove a key factor in enabling injustice to prevail.
The Rule Utilitarian case for unjust advocacy fails on its own terms:
[I]t is not at all obvious that rule consequentialism favors Devil's Advocacy, because it is far from obvious that the rule whereby defense attorneys ignore justice in the pursuit of client interests really has the best social consequences. This is commonly asserted but rarely argued for. Consider an alternative rule whereby defense attorneys pursue their clients' interests only to the extent that they (the attorneys) believe is consistent with the requirements of justice. Why, exactly, would this be worse than the status quo?
Does this mean lawyers should never defend clients they believe to be guilty?  No.  Defending the probably-guilty is morally acceptable in two kinds of situations.
First... there are cases in which outcome A has a higher probability of being unjust than outcome B, but in which if outcome B is unjust, it is more unjust than outcome A would be. For example, if a defendant is 75% likely to be guilty, then there is a 75% probability that acquittal of that defendant would be an unjust outcome, and only a 25% probability that conviction would be unjust. However, conviction of the innocent is much more unjust than acquittal of the guilty. Because of this, it is ethically justifiable to attempt to secure acquittal for such a defendant. This point applies as long as the lawyer has reasonable doubts as to the guilt of his client.

Second... even the guilty have rights; it is therefore ethically justifiable for a lawyer to represent a client for the purpose of protecting that client's rights, even if he is certain the client is guilty. The lawyer may seek to prevent overpunishment or other mistreatment of the defendant. In some cases, where the expected punishment for a crime is excessive, it may be less unjust for the defendant to be acquitted than for the defendant to be convicted, even though the defendant is guilty.
Defending clients guilty of breaking unjust laws naturally falls under the second heading, since the appropriate punishment for breaking an unjust law is no punishment at all.


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COMMENTS (31 to date)
RobertB writes:

The refutation of the the "Rule Utilitarian" argument is tellingly lame itself. If lawyers weren't allowed to defend someone they thought was guilty, the accused would be terrified of sharing things with their lawyer, for fear they would be cut off from legal counsel.

This also ties into the rights of the accused argument. In our legal system, the accused has the right to challenge the sufficiency of the evidence presented by a prosecutor, EVEN IF HE IS GUILTY. You can present evidence that someone else committed the crime, even if you did it. You can suggest that a witness has motive to lie, even if she is telling the truth. The justification for this right is that the state has an obligation to prove beyond a reasonable doubt that you are guilty. Establishing that standard requires testing the prosecution's case against reasonable but unlikely scenarios in front of a neutral fact-finder.

A final reason is that lawyers are routinely exposed to true evidence that cannot be presented in court and cannot legally be considered by a jury. It's not reasonable or fair to expect lawyers to untangle what they actually know to be true (based on privileged information) with what they should know to be true (based on what they are "allowed" to know). And if you allow lawyers to make judgments based on privileged information, you are shredding those privileges, many of which are in place to support other, rule-utilitarian-type policies.

Tracy W writes:

This is, I think, an interesting comment on this:

How can you defend someone you know is guilty?

And, at least in the UK, lawyers would have an obligation to reveal information in the first hypothetical:

You may reveal confidential information to the extent that you believe necessary to prevent the client or a third party committing a criminal act that you reasonably believe is likely to result in serious bodily harm.
Peter H writes:

The case of the murderer's friend seems unpersuasive to me because it doesn't comport with current legal ethics in an adversarial system, and the scenario it proposes is extraordinary.

Very few criminals seek out a defense attorney and confess to that attorney before they are caught by police or charges are filed against them. People get lawyers after they've been accused by the government of the crime. I don't see an ethical problem with not telling the government your client is guilty after the government has accused him. The government already believes in the guilt of the client, there's no need to tell them.

Second, a defense attorney who is acting ethically won't provide guidance for evading arrest or hiding a body. I don't know where Huemer gets the idea that helping a client hide a body is something that's in comport with current ethics rules in the adversarial system.

RPLong writes:

The hole in Huemer's argument is: How can I be given a fair trial if all lawyers believe me to be guilty?

Brian writes:

RobertB has already touched on the main points. Huemer's arguments miss the whole point of the lawyer's role in defense of the accused. The state has to provide sufficient evidence to prove someone is guilty. The defense lawyer, even one who knows that the client is guilty, is there to ensure that the state meets the threshold of going beyond a reasonable doubt.

Moreover, the lawyer has no ethical obligation to disclose the information because the lawyer only has the information by virtue of the client-attorney relationship. Receiving the same information outside that relationship is a different issue and carries different legal and moral requirements. This is no different than similar confidential relationships, such as with doctors, psychologists, priests, and so on. The analogy of a friendship is badly applied here.

Matt H writes:

So defense attorney in a politically charged case, turns states evidence and gets a book deal, and his own TV show. How about the argument from bad incentives? Should be persuasive to an economist.


Tracy W writes:

Another point in defence of defending someone who the lawyer knows to be guilty: we don't want the prosecution to slack off.

Dan S writes:

I am seriously in disbelief right now that you found that convincing. I'm just gonna leave this here and slowly back out of the room.

http://en.wikipedia.org/wiki/Repeated_game

Moebius Street writes:

While I think that in an ideal world the example of Sally would be correct, my observation of contemporary culture shows that people do not agree with Huemer's ethical analysis: it appears that most people in Sally's shoes would go along with preserving Joe's secret.

Moreover, the effect of Huemer's ideas would be to short-circuit the jury system. In today's system, we view the question as being so important that we want a jury of several people (depending on locale and crime) to come to an agreement that the defendant is guilty. But if the defense attorney could pull his punches if he -- and he alone -- believes that the defendant is (probably) guilty, then we've effectively reduced the requirement from a finding by an entire jury, to a finding by a single individual. (Mitigating this is that the defendant generally gets to choose who that one individual is, but I think the point still stands)

Tom West writes:

As has been summarized above, I am quite certain that justice *cannot* be achieved unless there are people willing to act in a way I would consider immoral.

This has its parallels in the fact that I do not believe that many of the aspects of society that I approve of could be achieved without the actions of people whose beliefs and indeed actions I disagree with.

JKB writes:

A bit sad I guess. But I can't wait to see this torn apart by those with actual knowledge of a lawyer-client obligation.

First, my understanding is a lawyer is obligated to report it when they have knowledge their client is going to harm someone, i.e., future crime.

In addition, a lawyer cannot aid in future crimes or in escape or evasion of the police.

Now, we are down to what is the moral obligation if a lawyer is told of past crimes and aids the individual in legal difficulties that arise from those past crimes.

The only real difference is that in Sally's case, assuming she kept the confidence on crimes that she did not have direct knowledge of, could use such hearsay accusations to spur the police into action for suspected impending crimes. A lawyer would be ethically bound not to reveal that hearsay information.

And now let's consider if the Joe said he was a serial violator of the Clean Water Act. The law is not considered unjust as everyone likes clean water. No documentable injuries to humans from the acts exists. Is Sally morally obligated to report Joe's alleged past acts?


And the police confront this all the time regarding fellow officers. They hear things, perhaps even bragging, about an officer using excessive force or violating rights, but yet, they don't do anything. Why? Because they don't have any direct evidence that would support a report of misconduct. Misconduct reports are often found to have been made for other than moral, legal or ethical purposes. In addition officer often do not provide evidence of behavior other officer engage in even when they have knowledge simply because their fellow officers will abandon them to die when they are in distress during the course of their work for betraying an unwritten code where no client/agent relationship exists.

AS writes:

"The hole in Huemer's argument is: How can I be given a fair trial if all lawyers believe me to be guilty?"
Fairness cuts both ways. Having a defense attorney lie for you is not fair to the victims of your crime.

Wallace Forman writes:

We need criminal procedures because we want to have confidence that a fair method of determining guilt is used. The adversarial system helps ensure that procedures is actually implemented. It begs the question to say that we don't need to use those procedures if we think that the defendant is guilty. You might as well say that we don't need *trials*.

It is fair to argue whether the procedures we have are actually good ones, but to doubt the adversarial system you must have more faith in private individual determinations of guilt than in public procedures.

Lupis42 writes:

He's narrowed the realm of cases where the adversarial system might be construed as requiring immoral behavior to be those where all of the following apply:
a) The attorney has no reasonable doubt of the defendant's guilt.
b) The crimes are legitimately crimes, and the probable punishment reasonably appropriate to the crimes.
c) The lawyer is obliged to do more than merely ensure that the defendant is handled fairly, and their rights are respected. (e.g. the lawyer has access to information which would ensure a conviction, but is obliged to withhold it)

It seems to me that this is likely an entirely hypothetical set of circumstances, and therefore the Rule-Utilitarian objection has not been adequately dealt with - merely discarded because it is not obvious.

To properly deal with it, we need to add more to the circumstances of the counterexample:
d) By disclosing evidence or otherwise acting in the course of justice in this case, the lawyer must have a high degree of certainty that the precedent thus set will not enable law enforcement, prosecutors, or judges to obtain similar disclosures in future cases that might not satisfy a) through c).

Consider an alternative rule whereby defense attorneys pursue their clients' interests only to the extent that they (the attorneys) believe is consistent with the requirements of justice. Why, exactly, would this be worse than the status quo?

It would be worse than the status quo to the extent that attorneys err in presuming their clients guilty, prosecutors or police misuse disclosures by defense to push unjust sentences, society punishes crimes which do not deserve punishment, and lawyers are obliged to go beyond protecting their clients rights even when they believe them to be guilty.

Against this, it appears it would be better in a tiny minority of highly hypothetical cases, and assuming that prosecutors and police similarly abandoned the adversarial model.

Phil writes:

Elaborating on Tracy's point

Another point in defence of defending someone who the lawyer knows to be guilty: we don't want the prosecution to slack off.

the defense lawyer is not defending the accused from the perspective that he condones the action or is trying to see the accused escape punishment. Often, he is protecting the process for the benefit of all future defendants by demanding the state not abuse its power. For the justice system to be just, the state - which has an overwhelming advantage with respect to resources and power -- is held to a high burden of proof. The defendant, who often has few resources and no power, can ensure the state does its job properly.

The ethical imperative to defend the guilty person is to ensure the state does not abuse its powers. (Re-)read Brown v. Mississippi (297 U.S. 278) if you need a reminder of what governments will do in the absence of enforced standards of due process.

Wallace Forman writes:

@AS - The adversarial system does not allow lawyers to lie in defense of their clients.

Michael Byrnes writes:

AS wrote:

"Fairness cuts both ways. Having a defense attorney lie for you is not fair to the victims of your crime."

Defense attorneys are not "lying" merely by defending a client they know or believe to be guilty.

In presenting a defense for any client, they are not allowed to lie. If a client admits his guilt to his lawyer, for example, the lawyer cannot allow him to testify that he is innocent. That would not be fair to the victims of the crime, but merely offering a defense for the accused is in no way unfair.

I think that a lot of what defense attorneys do would fall under the two exceptions noted by Huemer (i.e. situations where a conviction is more unjust than an acquittal or to protect a defendant's rights).

More broadly, I think Tracey W makes a key point - the requirement that the prosecution must prove its case also protects the rights of all of us.


Greg Heslop writes:

I wonder what the absolutist conception of individual rights (as in Nozick's ideas) would say about Huemer's hypothetical. I don't really see him addressing it, but it seems to me it differs from Huemer's intuitions.

"Second, it is even worse for Sally to actively assist Joe by giving him advice on how to elude the police. Here she not merely allows serious injustices to occur but actively promotes them."

This would not be OK by absolutist individual rights, since it actively aids in the violation of others' rights.

"First, it is wrong for Sally to keep Joe's secret; in so doing, she allows Joe, unjustly, to get away with his crimes, and she countenances an unacceptable risk of death for innocent others, due to the likelihood that Joe will kill again. Sally is morally obligated, instead, to turn Joe in to the police."

But this is acceptable because Sally is in charge of her own time. She is not taking active part in Joe's killings. She could, at a cost, report them, but she could, at a cost, save people from starvation or other afflictions, too. She is not morally required to do any of these things.

So, as far as I can see, the absolutist conception of individual rights reaches the same basic answer as does Huemer, but only in the case in which Joe is actively helped to commit crimes. In the case in which Sally merely keeps Joe's secret, she is morally blameless.

Daublin writes:

The definitions are mixed up, which leads to the discussion being mixed up. As well, my own reason for favoring an adversarial system is not given, much less refuted.

As a lawyer in an adversarial system, you don't help your client "win". You help your client achieve the best result possible. In the extreme cases the article discusses, where your client has definitely committed a heinously immoral act, surely it is still ethical to fight for a just sentence. Doing so is not "winning", but it is still important work.

This leads to my own favorite reason to support adversarial justice: it's a way to find the truth that works well with human biases. Real human beings are unaware of our strong biases; therefore, if you want to find the truth of some matter, incentivize two separate people to fight on different sides of the question, and have them duke it out. It's far from perfect, but if you're trying to decide whether someone should be executed for murder, it's the least bad system that's been tried.

Edogg writes:

Bryan Caplan and Mike Huemer,

Now none of your friends will confess their crimes to you. Nobody will confess secrets to you. You might have had the chance to offer them moral advice, but instead your friends will rely on their own judgement with whatever issues they are dealing with. Of course, we are asked to consider a hypothetical situation where a friend has in fact confessed, and criminals simply may not anticipate that their confidantes will do what is "morally required" of them, but by publicizing this argument you help prevent any situation of that sort.

Eh, I'm being hyperbolic. And I certainly don't recommend absolutely keeping all secrets. But Mike Huemer's "plainly wrong" hypothetical seems to me be obviously a genuine dilemma, or at least point to a genuine dilemma.

Roger Koppl writes:

What RobertB and Brian said. We should want strong systems in place to check the potential tyranny of governmental prosecutors.

The evidence seems to say that prosecutors seek convictions not justice.

http://www.tandfonline.com/doi/abs/10.1080/0731129X.2013.817070#.U-ABEoBdUUU

Non-gated version: http://works.bepress.com/roger_koppl/1/

Adam Casey writes:

Does anyone else find it utterly obvious that Sally ought to keep the secret? Clearly my intuitions are strange because I know enough game theory that the answer from that POV is "obvious". But I'm confused that the reaction could be that strong.

It seems weird to me that anyone could even think Sally ought to tell others his secret. But it's asserted here as intuitively obvious. Which must mean I'm very odd, or that I'm missing something.

Do people object to Confession on the same grounds? Sally is now his priest. Should she break her vow of secrecy and tell what she heard in confession?

blink writes:

Interesting missives, but the analysis is too static. The important point here is the incentives the system provides for accused to be open and honest with their attorneys. We need this precisely in order to adequately defend innocents. If I must worry about whether sharing information with my attorney will move his belief across some threshold, I will may withhold and then not get appropriate advice. Especially if accused are suspicious of attorneys generally, they may simply remain silent and then never receive proper legal support. (There is no similar defense for abetting further crimes, but that is not really needed for the thought experiment.)

Taking Sally's story, suppose instead that she is a priest. I want people like Joe to confess to her because she may turn even 1-in-10 away from further killings. This is worth the unpleasantness of holding the secrets of the other nine even as they go on with their crimes because otherwise that tenth would not have confessed and would also have continued his criminal activities.

The key is the incentives we provide for honestly in the general population. This is why commitment is crucial: Attorney's have every incentive to reveal their clients' misdeeds, but they only know about them because they committed not to tell.

Roy Haddad writes:

In the article you'll find Michael Huemer argues that defense lawyers should not promise (or let the client assume) confidentiality and then break it, but should announce up front that they will not defend a client that they think is beyond a reasonable doubt guilty and deserving of the punishment.

(section 4.2)

Chris writes:

Quite often, and especially for the most heinous crimes, the defendant has been "found guilty in the court of public opinion" before the trial starts. In many cases public opinion is wrong.

Sometimes, wannabe vigilantes, who cannot attack the defendant because he/she is in custody, will attack or threaten defence lawyers instead. Even if this does not happen, defence lawyers will often be criticised or even vilified by those who have already made up their minds before hearing all the evidence.

If people believe that the lawyer is morelly obligated to do his/her best to defend the accused whatever his/her personal beliefs, then they will be less likely to attack or criticise him/her for doing so. This will make good lawyers more likely to work for the defence and therefore reduce miscarriages of justice.

Craig Fratrik writes:

As Peter H first pointed out,

Second, a defense attorney who is acting ethically won't provide guidance for evading arrest or hiding a body. I don't know where Huemer gets the idea that helping a client hide a body is something that's in comport with current ethics rules in the adversarial system.

My impression was that every lawyer knew this fact, which makes me wonder if Prof. Heumer asked a lawyer for comments. But, that conclusion might be unfair.

Anyway, the paper would be stronger if it avoided conflating assisting in more injuries and resisting the conviction of someone who had already injured.

As a meta point, I wonder how much effort should be spent getting expertise of people in a given field, be it philosophy or legal, before posting. Perhaps lightweight blogging requires very little. If so, it would be encouraging if this post had more active engagement of the comments. (Disclosure: I do not normally click through the posts to read the comments.)

MikeP writes:

Count me as another person utterly unpersuaded by this argument. I had three objections in mind before reading the comments, and while some of the 26 comments before mine hint at them, I didn't see them cited exactly.*

First, I am unaware of the huge number of people who have stood accused of six serial murders yet been acquitted after strong defenses by their attorneys. In fact I am unaware of any accused serial murderers who have been acquitted. Hence, I don't really see the problem that this argument is trying to solve.

Second, I find it odd that a Bayesian would think the recommended system better than the current system. A trial in the current system is an experiment that draws in the greatest amount of information conceivable as determined by long centuries of common law. Asking the defense attorney to present a weaker case than he could denies the jury its chance to see the evidence blind and simply throws away information the experiment could have had.

But, fundamentally, a philosophical argument needs to start with first principles and recognize that no one has the right to punish someone for a crime they committed. And since no one has that right, no government has that right. To be sure, people have the right to act in self defense or to restrain someone who is immediately likely to violate someone's rights. But punishment of a criminal for a past crime is plainly an abrogation of the criminal's unalienable individual rights, not a right in and of itself. As such, the standard of proof must be very very high, and every possible benefit and defense must be given to the accused -- up to and including his advocacy by a professional who may be certain he is guilty. An abrogation of unalienable individual rights is on the line.

* ...which is itself a Bayesian experiment that carries a lot of information.

JA writes:

I concur that this is a stupid uninformed argument. In the US legal system lawyers are forbidden with helping a client commit or cover up a crime, and if the know there client is going to murder someone have an obligation to report it.

Ex ante the adversarial process with lawyer-client confidentiality is the best system.

Also, maybe my sense of morality is "warped" by Huemer's standards, but keeping a secret a friend tells you in confidence is not immoral.

@Daublin I agree often the role of an attorney in either civil or criminal cases, is to get the best settlement for the client. I'd think even Huemer would not think it immoral to negotiate the surrender of your serial-killer friend for leniency.

Ak Mike writes:

I agree with most of the comments and disagree with Prof. Caplan and Prof Huemer. I chime in to note, as Mr. Fratrik hints, that this issue is scarcely novel, but is chewed over in every introductory legal ethics class taken by every law student, also in many many discussions, articles, and blog posts among lawyers, particularly among criminal defense lawyers, and in conversations with some of the many attorneys in public and private positions whose job it is to dispense ethical advice to other lawyers.

There is no hint in the post above of any attempt to get insights from actual practicing lawyers who are bound by these rules.

Rocinante writes:

Under an anarchist system where lawyers refused to defend guilty clients, absence of a lawyer would be taken as evidence of guilt. This would favor the wealthy over the indigent. The wealthy will entice lawyers to defend them no matter what Professor Huemer says of the morality of it.

MikeP writes:

Mike begins by pointing out that the adversarial system obligates lawyers to act in ways that would plainly be wrong for non-lawyers...

By the way, I may have missed Mike's earlier works pointing out that the tax system obligates tax collectors to act in ways that would plainly be wrong for non-tax collectors and that drug and immigration laws obligate DEA or ICE officers to act in ways that would plainly be wrong for non-DEA or ICE officers.

But it should be obvious that someone who doesn't want the purported or potential ethical dilemma confronted here can go into a field other than defense law. There is no need to upset a functioning system evolved over centuries to protect inalienable rights in order to salve a few hypothetical frail consciences.

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