Lawyers' Ethics in the Gap between Law and Justice
South Texas Law Review, Vol. 40, P. 181, 1999
27 Pages Posted: 22 Oct 1999 Last revised: 3 Feb 2010
The primary function of lawyers is to provide access to the law. That which the law allows or facilitates, however, is often unjust. When practicing law in this gap, the lawyer ought to clarify for the client that there is a significant difference between law and justice in the particular instance, and that the choice between the two is the client's. Such counseling is difficult. Clients often perceive the gap between law and justice as a situation in which either the law or the lawyer is responsible for the injustice, not the client. Lawyers, in turn, often see the unjust use of law as the client's choice and the client's responsibility. With both client and lawyer pointing at the other, each avoids moral responsibility for the conduct. This paper suggests that it is the lawyer's ethical responsibility to ensure that the client understands there is a choice and that moral responsibility for that choice rests primarily with the client. The article confronts the skepticism and questions concerning practicality which many lawyers would raise in regard to a proposed ethical obligation of this sort. It examines both theoretical and practical problems with such a dialogue and examines under what circumstances such a conversation would be more or less appropriate.
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