I have a doubt on Rationalization, dunno if someone can use it for a post.
Imagine you’re a lawyer and someone comes to you saying he/she needs to be defended.
You don’t know whether he/she is guilty or not. You can obviously “guessing” using all data you can gather.
Your duty as a lawyer, if you accept the case, is to defend them no matter what. In fact, everyone deserves a due process.
Here’s my dilemma: take A Rational Argument and the other posts from “Against Rationalization”. It is said that to present a rational argument, you have to gather up the more evidence you can and then choose the best candidate.
So there are a few paths involving laws and evidence:
A) Both law and evidence on your side
B) Law on your side
C) Evidence on your side
D) Neither law or evidence
What should you do if you have only law on your side? Would you accept the case knowing that there’s a high degree of probability that your client is guilty?
It’s part of the ethos of a good lawyer to accept guilty clients as well as clients that aren’t guilty. The job of a lawyer also isn’t to provide rational arguments but to provide arguments that serve the interest of their client.
I know well what is the ethos of lawyers. My point was another. Lawyers can accept or decline cases, their decision depends on two factors: defending someone because it’s right and being paid. I was trying to understand what would be a rational take on this matter, knowing that both ways are legit, to maximize profit and to choose only safe cases.
What do you mean by “knowing that both ways are legit”? Only one way is legit: when someone comes to you needing defence and willing to pay your fees, you defend them.
(I think the actual system is a little different: a lawyer isn’t expected to defend their client if they’re sure the client is guilty; in that case they would ask them to find another lawyer, or something. But that isn’t because those clients don’t deserve defending, it’s because they deserve defending better than someone who’s sure they’re guilty is likely to manage.)
Hmm not really, let’s disambiguate.
Here I am talking mainly about civil issues.
There are ex officio lawyers appointed by the court and freelance lawyers.
Do freelance lawyers have the deontological duty to defend people? Yes
Do freelance lawyers have the right to choose their cases? Again, yes.
How do you balance this? Lawyers have to point to valid reasons why they deny to defend.
So, both ways are legit: if someone comes to you, you can defend him or not.
In this sense there is a margin to maximize profit.
It’s true that lawters aren’t required to take every client who comes along, but I think generally the legal profession strongly encourages them to be willing to take unattractive cases. For instance, the ABA Model Code of Professional Responsibility has various things to say, of which I’ve excerpted the bits that seem to me most important (on both sides of the question):
A lawyer is under no obligation to act as adviser or advocate for every person who may wish to become his client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to him and the bar generally.
[...]
When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case.
So they don’t quite say that lawyers should never refuse to represent clients just because they think they’re guilty. But they do say that lawyers should be willing to take “unattractive” cases, and that if a court assigns a lawyer to represent someone who can’t afford to pay for his own lawyer then that lawyer shouldn’t refuse just because they think the client is guilty.
So my earlier statement goes too far, but I think it’s more right than wrong: in general lawyers aren’t supposed to refuse to defend you just because they think you’re probably guilty. Even though they are allowed to refuse to defend you.
I feel like there is no conflict here; in fact it is widely considered a deal-breaker for a client to be guilty and lie to their attorney about it. A client lying to a lawyer is one of the ethically accepted reasons to dump a client they have already agreed to serve. This isn’t even pro-forma; in practice, lawyers don’t blame one another for dumping clients that lie to them. Nor is it considered a black mark for future hiring with other law firms.
The important variables here are that the lawyer is constrained by the evidence, but they have a duty to their client. This is because lawyers are not fact finders; they are advocates. The American trial system employs the ‘arguments are soldiers’ system specifically and deliberately, then it has a lot of rules for setting a floor on how bad the arguments can be and relies on nominally-neutral third parties (a judge and/or jury) to assess them.
Consider that a lawyer can represent themselves, their family, or parties in whom they have a financial stake without conflict of interest. However it is considered a conflict of interest if they have a financial stake in the other party, or anything else that might compromise their commitment to advocacy of their client.
So at least in the American system, I put it to you that accepting the case with total certainty your client is guilty is both ethical and rational.
I have a doubt on Rationalization, dunno if someone can use it for a post.
Imagine you’re a lawyer and someone comes to you saying he/she needs to be defended.
You don’t know whether he/she is guilty or not. You can obviously “guessing” using all data you can gather.
Your duty as a lawyer, if you accept the case, is to defend them no matter what. In fact, everyone deserves a due process.
Here’s my dilemma: take A Rational Argument and the other posts from “Against Rationalization”. It is said that to present a rational argument, you have to gather up the more evidence you can and then choose the best candidate.
So there are a few paths involving laws and evidence:
A) Both law and evidence on your side
B) Law on your side
C) Evidence on your side
D) Neither law or evidence
What should you do if you have only law on your side? Would you accept the case knowing that there’s a high degree of probability that your client is guilty?
It’s part of the ethos of a good lawyer to accept guilty clients as well as clients that aren’t guilty. The job of a lawyer also isn’t to provide rational arguments but to provide arguments that serve the interest of their client.
I know well what is the ethos of lawyers. My point was another. Lawyers can accept or decline cases, their decision depends on two factors: defending someone because it’s right and being paid. I was trying to understand what would be a rational take on this matter, knowing that both ways are legit, to maximize profit and to choose only safe cases.
What do you mean by “knowing that both ways are legit”? Only one way is legit: when someone comes to you needing defence and willing to pay your fees, you defend them.
(I think the actual system is a little different: a lawyer isn’t expected to defend their client if they’re sure the client is guilty; in that case they would ask them to find another lawyer, or something. But that isn’t because those clients don’t deserve defending, it’s because they deserve defending better than someone who’s sure they’re guilty is likely to manage.)
Hmm not really, let’s disambiguate. Here I am talking mainly about civil issues. There are ex officio lawyers appointed by the court and freelance lawyers. Do freelance lawyers have the deontological duty to defend people? Yes Do freelance lawyers have the right to choose their cases? Again, yes. How do you balance this? Lawyers have to point to valid reasons why they deny to defend. So, both ways are legit: if someone comes to you, you can defend him or not. In this sense there is a margin to maximize profit.
It’s true that lawters aren’t required to take every client who comes along, but I think generally the legal profession strongly encourages them to be willing to take unattractive cases. For instance, the ABA Model Code of Professional Responsibility has various things to say, of which I’ve excerpted the bits that seem to me most important (on both sides of the question):
So they don’t quite say that lawyers should never refuse to represent clients just because they think they’re guilty. But they do say that lawyers should be willing to take “unattractive” cases, and that if a court assigns a lawyer to represent someone who can’t afford to pay for his own lawyer then that lawyer shouldn’t refuse just because they think the client is guilty.
So my earlier statement goes too far, but I think it’s more right than wrong: in general lawyers aren’t supposed to refuse to defend you just because they think you’re probably guilty. Even though they are allowed to refuse to defend you.
Upvoted because I agree. That’s what I was saying, they have to point to valid reasons.
It’s not always rational to make a rational argument. Rationality in the same Eliezer defines it has to do with your goals.
Ok, thank you for your answers. I was searching for a new angle from which looking at my area of interest, but I’ve probably asked the wrong question.
I feel like there is no conflict here; in fact it is widely considered a deal-breaker for a client to be guilty and lie to their attorney about it. A client lying to a lawyer is one of the ethically accepted reasons to dump a client they have already agreed to serve. This isn’t even pro-forma; in practice, lawyers don’t blame one another for dumping clients that lie to them. Nor is it considered a black mark for future hiring with other law firms.
The important variables here are that the lawyer is constrained by the evidence, but they have a duty to their client. This is because lawyers are not fact finders; they are advocates. The American trial system employs the ‘arguments are soldiers’ system specifically and deliberately, then it has a lot of rules for setting a floor on how bad the arguments can be and relies on nominally-neutral third parties (a judge and/or jury) to assess them.
Consider that a lawyer can represent themselves, their family, or parties in whom they have a financial stake without conflict of interest. However it is considered a conflict of interest if they have a financial stake in the other party, or anything else that might compromise their commitment to advocacy of their client.
So at least in the American system, I put it to you that accepting the case with total certainty your client is guilty is both ethical and rational.
Is it ok to omit facts to you lawyer? I mean is the lawyer entitled to know everything about the client?
Everything about the client *that is relevant to the case,* yes. Omitting relevant facts is grounds for terminating the relationship.