You know, for too long I've been content to follow my conscience within the frame of reference created by the requirements of my legal profession and the rules set by my employers, both public and private. I've always assumed that if my ethical obligations to a client or my fiduciary obligations to my employer conflict with my conscience, I ought to resign.
Now, thanks to example set by the Bush Administration, I realize that my conscience is entitled to special protection. By which I mean my job and my bar card need protection, such that I will have a right to keep them even if I violate their strictures.
Boy, is my conscience ever bothered by being a criminal defense attorney. Did you know that some of these people are actually guilty? But the California Rules of Professional Conduct require me to do my best to represent a client, even if my skills might result in a guilty man walking free. My law firm expects that as well: they like repeat business, they like good word of mouth, and they don't like being sued. But working to set a guilty man free bothers my conscience. So the government ought to pass a law that says that I am entitled to keep my job even if I refuse to represent clients who strike me as probably guilty. In fact, the law ought to protect my right to represent clients in a way that follows the dictates of my conscience — that guilty people ought to be punished — rather than requiring me to represent clients vigorously even when they refuse to plead guilty.
For that matter, a lot of the legal tricks and techniques available to me bother my conscience. Did you know that if the police beat a confession out of you, or search your house without a warrant, a liberal judge might suppress the resulting evidence? I disagree with that. My conscience bothers me when someone exercises their constitutional rights in a way that leads to relevant evidence being excluded. So I want the law to protect my conscience by establishing that I don't have to file motions to suppress on behalf of clients.
But that's not enough, is it? Some people claim that I'd be obligated to tell a client that he has a Fourth or Fifth Amendment issue in his case, and that he might get the evidence suppressed if he went to another lawyer with less of a conscience who is willing to file the motion for him. But if I do that, it's just as bad for my conscience as if I filed the motion myself. If I alert my client to his legal options, I'm encouraging unconscionable behavior, like the invocation of rights I don't like. So the law should let me shut up. Now, most clients aren't legally sophisticated. They might not realize that they can file a motion to suppress evidence unless I tell them. But any alleged obligation to tell my clients all of their rights, and what might result in their freedom, has to yield to my right to exercise my conscience. Otherwise, I might have to choose another sort of law to practice, or even another profession, that doesn't bother my conscience. And how would that be fair?
I hope the Bush Administration issues a regulation like this before Bush leaves office. Won't he think of the lawyers? I'm afraid that the Obama administration might be too much like the character Tanner in Shaw's Man and Superman:
TANNER. My dear Tavy, your pious English habit of regarding the world
as a moral gymnasium built expressly to strengthen your character in,
occasionally leads you to think about your own confounded principles
when you should be thinking about other people's necessities.
Last 5 posts by Ken White
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017
- We Interrupt This Grand Jury Lawsplainer For A Search Warrant Lawsplainer - August 9th, 2017