Legal Ethics-Deontological, Utilitarian, and Casuistry Perspectives
| Legal Ethics from Deontological, Utilitarian and Casuistry Perspectives | | | | |
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Deontological ethics are concerned with the intent of an action without regard to the outcome, while utilitarian ethics are concerned only with the consequences of the action. Some argue that the legal code of ethics is derived from a utilitarian theory, while others argue that it is derived from deontological theory. As deontological ethics are the polar opposite of utilitarian ethics, it should be impossible for legal ethics and the professional code of responsibility to be derived from both. I argue that the legal codes of ethics are in fact derived from a hybrid of both theories called casuistry. Neither deontological nor utilitarian theory could completely allow for the code of legal ethics we have in place today, while casuistry bridges the divide between the two theories.
The American Bar Association has recognized that legal ethics has strayed from normal ethics, when it is supposed to follow the basic mores of society as a whole. As such, they have revised the code to include instances where it is permissible for lawyers to disclose information furnished by their clients that used to be completely confidential with no exceptions. At the same time, they have made such disclosure acceptable, but not required. This is in order to allow for the lawyer involved to follow his own moral compass in deciding what to do in a particular situation.
The Preamble of the 2009 Model Rules of Professional Conduct states in part “…a lawyer is also guided by personal conscience and the approbation of professional peers…Virtually all difficult ethical problems arise from conflict between a lawyer 's responsibilities to clients, to the legal system and to the lawyer 's own interest in remaining an ethical person while earning a satisfactory living…Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic
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Deontological ethics are concerned with the intent of an action without regard to the outcome, while utilitarian ethics are concerned only with the consequences of the action. Some argue that the legal code of ethics is derived from a utilitarian theory, while others argue that it is derived from deontological theory. As deontological ethics are the polar opposite of utilitarian ethics, it should be impossible for legal ethics and the professional code of responsibility to be derived from both. I argue that the legal codes of ethics are in fact derived from a hybrid of both theories called casuistry. Neither deontological nor utilitarian theory could completely allow for the code of legal ethics we have in place today, while casuistry bridges the divide between the two theories.
The American Bar Association has recognized that legal ethics has strayed from normal ethics, when it is supposed to follow the basic mores of society as a whole. As such, they have revised the code to include instances where it is permissible for lawyers to disclose information furnished by their clients that used to be completely confidential with no exceptions. At the same time, they have made such disclosure acceptable, but not required. This is in order to allow for the lawyer involved to follow his own moral compass in deciding what to do in a particular situation.
The Preamble of the 2009 Model Rules of Professional Conduct states in part “…a lawyer is also guided by personal conscience and the approbation of professional peers…Virtually all difficult ethical problems arise from conflict between a lawyer 's responsibilities to clients, to the legal system and to the lawyer 's own interest in remaining an ethical person while earning a satisfactory living…Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic
Cited: Cooper, David E. Ethics for Professionals in a Multicultural World. Upper Saddle River, NJ: Pearson Education Inc. , 2004. D 'Amato, Anthony, and Edward J. Eberle. "Three Models of Legal Ethics." Saint Louis University Law Journal, 1983: 761-799. Freedman, Benjamin. "A Meta-Ethics for Professional Morality." Ethics, Vol. 89, No. 1., 1978: 1-19. Freedman, Monroe H. "Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions." Michigan Law Review 64, 1966: 1469-1482. Freeman, Stephen J., and Perry C. Francis. "Casuistry: A Complement to Principle Ethics and a Foundation for Ethical Decisions." Counseling and Values, January 2006: Volume 50. Rhode, Deborah L. "Legal Ethics Symposium: Lawyer Ethics in an Adersary System: The Persistent Questions." 34 Hofstra Law Review 641, 2006. Simon, William H. "Role Differentiation and Lawyers ' Ethics: A Critique of Some Academic Perspectives." Georgetown Journal of Legal Ethics 987, 2010. Woolley, Alice, and W. Bradley Wendel. "Legal Ethics and Moral Character." Georgetown Journal of Legal Ethics 1065, 2010.