Devil's Advocates

Here I explain why it’s wrong for lawyers to pursue unjust legal outcomes.*

[ *Based on: “Devil’s Advocates: On the Ethics of Unjust Legal Advocacy,” in Ethics in Politics: The Rights and Obligations of Individual Political Agents, ed. Emily Crookston, David Killoren, and Jonathan Trerise (Routledge, 2017), pp. 285-304. ]

1. The Problem of Unjust Advocacy

The case of the Murderer’s Friend:

Joe confesses his darkest secret to his friend Sally: he is a serial murderer. Sally tells Joe that he should stop, but Joe remains noncommittal about future murders. Sally, being a good friend, gives Joe helpful advice about how to evade the police, hide his most recent body, etc.

In this case, Sally is horribly immoral. Why? It’s wrong to deliberately help someone get away with serious crimes. Joe deserves to be punished for his heinous deeds, and by keeping Joe out of jail, Sally is enabling Joe to commit further murders.

Oddly, though, conventional legal ethics judges things very differently when it comes to lawyers: lawyers are said to be permitted, even obligated, to deliberately pursue unjust outcomes, when doing so is in the interests of their client. This includes trying to get heinous criminals set free.

Most lawyers are 100% convinced that this is perfectly fine. In one blog post, an aspiring lawyer ventured that “an attorney’s ultimate goal must be to seek justice and not to simply win.” A practicing attorney replied, “That’s not just wrong. It’s absolutely, fundamentally, incontrovertably wrong.”

Wow. So there must be some amazingly compelling arguments for this view. Let’s see these amazing arguments.

2. Defending Unjust Advocacy

These are the arguments given by actual lawyers and legal scholars on this subject:

2.1. The epistemological problem

Argument: A lawyer can never really know that a client is guilty. Even a client who confesses might be crazy, or trying to protect someone else, etc. Since you can’t know where justice lies, just pursue your client’s interests.

Reply:

1. What do they mean by “know”?

   1. Maybe they mean “know with absolute certainty”. If so, that’s right, you can never be absolutely certain of any contingent, external-world proposition. However,

      1. You also can never be absolutely certain of what will serve your client’s interests.

      2. Obviously, one does not need absolute certainty in order to rationally pursue a goal; one need only have some rational expectations.

   2. Maybe they mean that they don’t even have rational expectations about who is guilty, etc. In that case,

      1. That is ridiculous. Consider, e.g., the case of Benjamin Courvoisier; this, btw, was one of the key cases that led to the currently accepted view of a lawyer’s duties. Courvoisier was a servant who was on trial for the murder of his employer. During the trial, a woman showed up in the courtroom as a surprise witness for the prosecution. When she appeared, Courvoisier whispered to his lawyer that he (Courvoisier) had indeed killed his master and stolen some of the master’s belongings; the woman who had just entered the courtroom was the person with whom he had left the stolen goods.

         The lawyer approached the judge, told him what had happened, and asked the judge what to do. The judge told the lawyer to do his best to defend the client anyway. (If that judge had given a different answer, we might now have a completely different conventional understanding of lawyers’ duties.) So the lawyer did his best to impugn the witness’ credibility, even suggesting that perhaps she was lying because she herself was the murderer. In this case, the suggestion that the lawyer had no idea if Courvoisier was guilty is pretty ridiculous.

      2. Again, if you’re so skeptical that you think you never have rational expectations about what actions serve justice, then you should also doubt that you ever have rational expectations about what serves a client’s interests.

2. If you actually bought this argument, wouldn’t it follow that we should dismantle the whole criminal justice system since no one can know whether a defendant is guilty (why would the ignorance be limited to lawyers?)?

   Juries are not supernatural oracles; the only way they know who is guilty is by looking at the evidence presented in the trial. The defense lawyer has that same evidence and often more.

2.2. The lawyer as friend

Argument: Sometimes, it’s okay to be partial to your friends, to serve their interests rather than whatever is best for society. Maybe a lawyer is like a friend to his client and thus permitted to be partial to the client.

Reply:

1. There are limits to friendship. If your friend has committed a heinous murder, you cannot help him get away with it. That is wrong no matter how good a friend he is.

2. As D’Amato and Eberle put it, there is “something strange about an instant friend whose friendship is purchased by paying a retainer.” Surely this isn’t the kind of “friendship” that suspends other moral duties.

2.3. Faith in the system

Argument: As long as everyone plays their assigned role in our system, you should trust that the system will deliver the just result.

Reply:

1. If this were true, then there would be no point in advising someone to hire a good lawyer; no matter who represents them (as long as they play their role), the trial will have the same outcome (the just outcome, whatever that is). Clearly, no one believes that.

2. There are many reasons why a lawyer might cause an unjust outcome while playing his role in the system:

   1. Sometimes, one side is simply more skilled than the other.

   2. Sometimes, the lawyer can play on jury members’ emotions, get them confused, deploy logical fallacies, etc. It is not guaranteed that this won’t work.

   3. The lawyer may have information the jury and the prosecution lack. E.g., that the defendant confessed to the lawyer. Then the lawyer could know that his client is guilty, but the trial may not result in conviction.

2.4. Rule consequentialism

Argument: Even if, in a particular case, a better result would be obtained by violating your assigned role as a lawyer, the general rule that lawyers should do their best to represent their clients has the best consequences. So you should follow that rule.

Reply:

1. Rule consequentialism is controversial, nor is it obvious how it should be interpreted. E.g., if everyone followed the “rule” “Become a philosopher”, we would all starve; does this show that it’s wrong for me to become a philosopher?

2. Moreover, I have no idea why the rule “pursue your client’s interests” is supposed to have better consequences than the rule “serve justice”. Wouldn’t the rule “serve justice” obviously have better consequences, by leading to more justice?

   1. Maybe the concern is that some innocent defendants who appear guilty could get convicted because their lawyers will not try their best to get them acquitted. Whereas, if lawyers just try to serve their clients’ interests, those defendants might get acquitted.

      1. But the claim can’t be that we should never allow any innocent people to be convicted. (If we thought that, we’d dismantle the entire justice system.) So the claim must be that, by having lawyers following the rule “pursue justice”, we will create too high of a risk of convicting the innocent.

      2. Imagine that defendant D cannot find a lawyer to represent him because he can’t find any defense attorney who thinks that there is a reasonable doubt about D’s guilt. Bear in mind that defense attorneys are the most pro-defendant-biased group of people in the world. I think this would be incredibly powerful evidence of D’s guilt – far more powerful, in fact, than if a group of 12 ordinary jurors thinks D is guilty.

      3. So if you’re okay with people being punished when a jury convicts them, even though there is some chance that they are really innocent, then you should certainly be fine with people being punished when all defense lawyers think they are obviously guilty, even though there is a nonzero chance that such a person might be innocent.

2.5. The right to a fair trial

Argument: Everyone has a right to a fair trial. But a fair trial requires legal representation. Therefore, if you’re a defense attorney, you should represent any defendant, no matter how obviously guilty he appears.

Clarifications:

• It is not wrong per se to represent guilty clients. A lawyer may represent a factually guilty client for the purpose of preventing unjust punishments or rights-violations. What is unethical is to represent a person who you know committed a crime that was really wrong and really deserves to be punished, and to attempt to stop that person from getting the punishment he deserves.

• The question here is a question of individual ethics: if you’re a lawyer, what should you as an individual do? The question is not what the government should do, whether there should be a law against advocating unjust positions, etc. (This seems to be one of the hardest points for people to grasp; I suppose people can’t imagine a lawyer acting on his individual conscience.)

Reply:

1. Failing to represent someone, or refusing to defend the position that your client wants you to defend, does not violate his rights, since you are not stopping him from hiring someone else. (Compare: If I don’t publish your book, I’m not denying your right to free speech.)

2. Anyway, the point of procedural rights in the justice system is to make the system more reliable at punishing the guilty and acquitting the innocent. There is no reason to posit procedural rights that would render the system less reliable. So there’s no reason to posit a right for obviously guilty people to demand that their lawyer pretend to believe they are innocent, or that he use every trick he can think of to manipulate the jury into thinking they are innocent.

3. Lying vs. Misleading

I have two main arguments. The first one we just finished; in sum:

1. It is wrong in general to deliberately promote injustice.

2. There are no special considerations in the case of lawyers that would explain why they would be exempt from this principle.

3. So it is also wrong for lawyers to deliberately promote injustice.

   . . .

   Here is the second argument:

4. It is wrong for a lawyer to lie.

5. The other ways for a lawyer to promote unjust outcomes are not morally superior to lying.

6. So it is wrong for a lawyer to promote unjust outcomes.

Comments:

(4) is accepted in conventional legal ethics. It is uncontroversial that it is wrong for a lawyer to present fabricated evidence, to suborn perjury, or to outright lie about matters of fact to the judge or the jury.

But intentionally pursuing injustice in other ways is not morally superior to lying, suborning perjury, etc. Intentionally pursuing an unjust outcome of a legal case is, by definition, attempting to mislead the court as to the correct resolution of the case. The reason why it’s bad to lie, suborn perjury, etc., is that these lies interfere with the court’s ability to correctly resolve the case (lies about immaterial matters that don’t bear on the outcome of the case would be much less wrong). So deceiving the court about the correct resolution of the case must also be wrong.

Another way to put the point: Tricking someone into believing P using deliberately misleading statements is not morally better (or at least not much better) than tricking someone into believing P by lying. So if it’s wrong for the lawyer to lie, it’s also wrong for the lawyer to make deliberately misleading statements. But that includes pretty much all statements designed to pursue unjust outcomes. So it’s wrong for a lawyer to pursue unjust outcomes.