The Attorney’s Dilemma

Ethics: the moral principles that govern a person’s behaviour. We are all guided in their daily lives by a set of beliefs, values and principles that enable us to distinguish between right and wrong; for most people who are not, say, Charles Manson, these beliefs, values and principles tend to conform to the mores of the larger community of which we form part. Attorneys, however, must also comport themselves with the particular ethics mandated of their profession. What are legal ethics? A distinct set of moral obligations that arise from the attorney’s role? The application of ordinary morality to the practice of law? Or a philosophy that renders the life of a attorney consistent with a life well-lived?

The definition of legal ethics has caused consternation for years, but over time, a general framework has emerged. Attorneys’ ethics deal with the ethical obligations of the practice of law. They impose constraints on attorneys’ conduct; these ethics should guide the decisions an ethical attorney will make and the processes the attorney will employ to arrive at such decisions. In most instances, the basic demands of the ethical attorney are straightforward and free from controversy: loyalty, confidentiality, and zealous advocacy. The attorney’s ethical dilemma emerges, however, when the demands of the profession conflict with an attorney’s personal morality.

The ethical demands of the profession will, in unfortunate instances, place the attorney in a position where “ethical conduct” may require them to subordinate their own beliefs, values, or morals. For example, an attorney cannot, ethically, decline representation of a client merely because they feel personal distaste towards the client or their cause, and, once the attorney takes on said client, they are ethically bound to provide that client zealous advocacy to the best of their abilities. This rule provides the explanation as to why serial killers, rapists and those who abuse children are not left to their own defences; contrary to prevailing misconception, it’s not always about the cold hard cash that accompanies such high-profile representation.

This tension may present itself in other circumstances, such as, for example, the case where the suspected killer confides to his attorney the location of the victim’s body. In a now-infamous case in New York, attorneys Frank Armani and Francis Belge, on the basis of attorney-client privilege, refused to disclose the location of the bodies of two people murdered by their client, Robert Garrow. Armani and Belge had represented Garrow in his trial for the murder of an eighteen-year-old boy; during that trial, Garrow had confided to his attorneys where he’d hidden the bodies of the two girls. While Belge was indicted for his refusal to disclose the locations of the bodies, and Armani’s bar association moved to disbar him, both were ultimately exonerated and their conduct vindicated by the bar. To the average person; the attorneys’ refusal to divulge the location of the girls’ remains must appear morally repugnant. To the attorney familiar with the ethical rules of their profession, however, it represents the utmost loyalty and dedication to the notion of attorney-client privilege.

A life well lived, for most, requires a clear conscience. How does the attorney keep a clear conscience when they are required to do things that the average person would deem unconscionable? The answer, for me, lies in remembering that the profession I have chosen is not merely a career choice, but a vocation, and the exigencies of that profession represent a contribution to the greater good. The important relationship between the attorney and her client extends beyond the parties; it is integral to the public’s confidence in our legal system. If the client cannot trust his attorney, society cannot rightfully be expected to do so, either. An attorney who fails to discharge the ethical duties of loyalty, confidentiality and zealous advocacy betrays not only their client but their profession at large. It is for this reason that an attorney must be able to reconcile their own morality with the ethics of their profession whenever the two conflict.

Elizabeth Cotignola
Lawyer in Montreal, Canada 
Twitter @LaDiavolina