Catch 22 Of The Legal Profession
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In today’s world, we face many ethical dilemmas within the legal professional field. For instance, there has been a big publicized Congressional Hearing at Capitol Hill on February 13, 2008, Clemens vs. McNamee, known as the “Clemens Report”1 (J. Shermann, One Final Showdown: Rocket vs. McNamee, The New York Post, 2008, February 13). This hearing revolves around the usage of steroids in the MLB (Major League Baseball), but the hearing was really about if Roger Clemens2 used steroids and/or any Human Growth Hormone (HGH) while playing baseball. According to the The Mitchell Report3, “McNamee injected Roger Clemens four times in the buttocks over a several week period with needles that Clemens provided”. More statements were provided in The Mitchell Report that accuses Clemens of using performing enhancing drugs. One the other hand, the major problem with The Mitchell Report is that there was no physical (real) evidence proving that Clemens had used performing enhancing drugs and The Mitchell Report solely relied on the testimony given by Roger Clemens ex-trainer, Brian McNamee; Roger Clemens denies such allegations. Therefore, this hearing became a battle of “he said, she said”. Both individuals are telling their side of the story but obviously, there is one truth behind it all.
Nevertheless, the attorneys of each party are representing their client as if they are credible, and each attorney is attempting to diminish the credibility of their “opposition”. In this case, you see some of the ethical dilemmas that many legal professionals’ confronts on the day-to-day basis; principle partisanship, attorney-client privilege, and principle of non-accountability are some of the elements that troubles these legal professionals in this adversarial system5.
Principle partisanship is “when acting as an advocate, a lawyer must, within the established constraints upon professional behavior, maximize the likelihood that the client will prevail.”4 This principle is to protect the client’s interest, so they will not be “short changed” by the attorney’s effort. Just like the “Clemens Report”, although Clemens is looking like the person who is contradicting himself in this case, his attorneys still needs to do their job do their full potential.
Attorney-client privilege is “the right of clients to refuse to disclose confidential communications with their lawyers, or to allow their lawyers to disclose them. It is the clients privilege, not the lawyers, and is the earliest known “privileged communication” in the law. The attorney-client privilege is viewed as fundamental to preserve the constitutionally based right to effective assistance of legal counsel, in that lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.”5 This principle has a good and a bad, the good is obviously giving the client the opportunity to feel fully confident with their attorney. The bad is attorney’s can take advantage of this principle and practice cases that is good for the whole.
Principle of non-accountability is “when acting as an advocate for a client…a lawyer is neither legally, professionally, nor morally accountable for the means used or the ends achieved.”6 This is probably the biggest ethical dilemma legal professionals’ face on the day-to-day basis. For instance, an attorney that works for a law firm may have to defend a tobacco company against a lawsuit. Since they (attorneys) do not have any accountability for their representation they can take up on a case where the defendant is “guilty” but are willing to do defend because it is beneficial to them financially. This can be a burden to whole legal system because lawyers won’t be arguing or defending what is right but litigating a case for what is in their best interest.
Furthermore, the Annesley vs. Anglesea (2743) case7 tackles a couple of ethical dilemmas in the legal profession. For instance, Annesley filed a claim for his father’s, Lord Altham, estate. His uncle Anglesea currently owns the estate, and disputes that Annesley is not the rightful inheritor of the estate because he is not the son. Therefore, Burroughs, former solicitor for Anglesea, testifies that Anglesea proposed a reward to him, Burroughs, if he prosecuted Annesley, and would compensate him 10,000ÐЈ if he has Annesley hung. Burroughs was trying to illustrate that this was Anglesea motive to prevent Annesley from possessing the estate. Therefore, Annesley must be the rightful heir of the estate. The problem is Burroughs broke the code ethics between attorney-client. Therefore, Giffard, Anglesea’s attorney, questions Burroughs character by stating, “Only a dishonorable lawyer would reveal a client’s confidences, and a dishonorable lawyer may not be telling the truth.”8 Lastly, the case continued and eventually it turned in favor of Annesley, although Burroughs argument was uncompelling. The problem this case face, is the attorney-client privilege, Boroughs testify what his former client had said. The other problem is the principle of non-accountability, since Boroughs new that the motive of Uncle Anglesea might of being for the wrong reason, should he be held accountable for it.
Now to the case in The Merchant of Venice,9 this case is really questions the competence of Portia, and the morality or ethics of the contract made between Shylock and Antonio. For instance, Shylock loaned Antonio 3,000 ducats for a period of 3 months. Antonio agreed if he fails to pay back Shylock’s loan in 3 months, Shylock will have the right to cut “a pound of flesh from Antonio’s breast”10 this was the terms. Furthermore, Antonio failed to pay back his debt to Shylock. Therefore, Shylock proceeded to the Venetian court to get his bond honored. Shylock was determined to get his bond honored, no matter if anyone had offered Shylock 9,000 ducats to pardon Antonio (Shylock rejected a 6,000 offered from Bassanio). Then, Portia comes in disguised as a doctor of civil law to moderate the case. “Portia points out that the deed calls for no blood to be shed and exactly one pound to be taken, lest Shylock be guilty of not following the bond himself.”11 Shylock realizing that this is impossible he requests 9,000 ducats. Portia then reveals that Shylock is himself guilty of a crime, and that Shylock is conspiring in