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Lecture 2

Philosophy 34-226 Lecture 2: Lectures 2,3 on The Adversarial System

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Lecture 2,3 on The Adversarial System and The Practice of Law Freedman and Langbein  Freedman supports the adversarial system  Freedman argues the confidentiality between client and defense attorney (calls it sacred)  Says this confidentiality is the basis for the adversarial system  Adversarial system: includes a neutral judge and two lawyers arguing either side for the truth to come out victorious  Langbein opposes the adversarial system by comparing it to the German system Freedman: Lawyers Ethics in an Adversary System Introduction  Freedman is very influential in the U.S. legal system  Because of Freedman, lawyers can now advertize (made law much more of a business)  For Freedman, lawyers are knowledgeable about law, but other than that, they are no different from any other American citizen  Freedman trying to figure out how lawyers should behave (normativity) The Ethical Issue THE CASE:  Robbery takes place, defendant is charged with a crime but is innocent  The defendant is poor, so he is assigned an attorney from the Crown  At first he tells his lawyer that he wasn’t anywhere near the scene of the crime, but at the time he was (witness identifies him at the scene)  One witness places him at the scene, the other says he was the robber  He eventually tells the attorney the facts (he was close to the scene of the crime)  The defendant wants to commit perjury (lying under oath) but the lawyer must defend him  Even if the defendant goes to a new lawyer, he will still lie under oath  Ethically, the lawyer should try and dissuade the client from lying  Trilemma: three issues that confront a lawyer in a case like this o (1) In order to prepare the defense properly, counsel must know all that his client knows o (2) Counsel must keep confidential all that his client tells him o (3) Counsel, as an officers of the court, must be candid with the court  To Freedman, the ethical consideration is always going to be on the side of the client  Sacred trust of confidentiality between lawyer and client which is the basis of the entire adversarial system  Ethics is not only about laws, rules, and principles, but also about creative imagination (looking at other povs/options/etc) Primary Legal Responsibility: “The Sacred Trust of Confidentiality” (PG 4) Alternative Resolutions: o Withdraw from the case: this is the easiest, but also probably the most immoral (this is what Freedman argues as well) o This leaves the case for someone else o This person has been appointed to you by the court, so this is your obligation and you shouldn’t be able to pass it off o Freedman’s ethical understanding : withdrawing from the case is unethical o So far, there has been no discussion of a lawyer's right: this dilemma is set up based on duties/obligations, ignoring the lawyer’s personal rights o What about the client’s responsibilities?  B) “Selective Ignorance” (PG 6) o Reputations are important for lawyers, so only some facts are presented so that they can win o Doesn’t resolve the problem because it violates the first duty in the trilemma o It also lays an unfair burden on the client because it makes it difficult to determine what the lawyer wants to know and what they shouldn’t o According to Freedman, the client’s rights are protected above all else: not the lawyer’s but the citizens o Is democracy and protection of citizen’s rights so important that you can do it on the basis of bad ethics (i.e. perjury is unethical)? o Do you have a democratic right to be unethical? Yes. o Freedman argues that the law is more important than ethics o Freedman is a legal positivist: the law is one thing, ethics is something else (the law is the law; it is legal justice, not necessarily moral justice) o Freedman, Hart, and Austen are all connected The Problem  The lawyer does not have to be involved materially in the client’s perjury (lawyer cannot obstruct justice because it undermines the entire adversarial system)  Withholding truth and the sacred trust of confidentiality  Ethically, a good lawyer will deflect the situation (perhaps they will not talk to their client at all and simply argue – not worrying about truth, but only trying to rip apart the opposing arguments)  Does that mean you are cooperating with the perjury?  Freedman argues that the deflection is ethical because you are trying to defend the client Reminder (PG 3)  They know the perjury is there, but they ignore it…does that m
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