The Lawyer S Conscience

In 1776, Thomas Paine declared the end of royal rule in the United States. Instead, “law is king,” for the people rule themselves. Paine’s declaration is the dominant American understanding of how political power is exercised. In making law king, American lawyers became integral to the exercise of political power, so integral to law that legal ethics philosopher David Luban concluded, “lawyers are the law.” American lawyers have defended the exercise of this power from the Revolution to the present by arguing their work is channeled by the profession’s standards of ethical behavior. Those standards demand that lawyers serve the public interest and the interests of their paying clients before themselves. The duties owed both to the public and to clients meant lawyers were in the marketplace selling their services, but not of the marketplace. This is the story of power and the limits of ethical constraints to ensure such power is properly wielded. The Lawyer’s Conscience is the first book examining the history of American lawyer ethics, ranging from the mid-eighteenth century to the “professionalism” crisis facing lawyers today.

On trial practice, defense lawyers, and legal ethics, by discussing the murder of Lord William Russell in London, May 5, 1840, and a reconstruction of the trial of his valet, Benjamin François Courvoisier.

THE CONSCIENCE OF JUDGES AND APPLICA nON OF LEGAL RULES The book is devoted to the problem of the influence of moral judgements on the result of judicial decision-making in the process of application of the established (positive) law. It is the conscience of judges that takes the central place in the research. Conscience is understood in the meaning developed in the theory of Thomas Aquinas as the complex capacity of the human being to make moral judgements which represent acts of reason on the question of what is right or wrong in a particular situation. The reason why we need a theory of conscience in making judicial decisions lies in the nature of the positive law itself. On the one hand, there is an intrinsic conflict between the law as the body of rigid rules and the law as an living experience of those who are involved in social relationships. This conflict particularly finds its expression in the collision of strict justice and equity. The idea of equity does not reject the importance of rules in legal life. What is rejected is an idolatrous attitude to the rules when the uniqueness of a human being, his well being and happiness are disregarded and sacrificed in order to fulfil the observance of the rules. The rules themselves are neither good or bad. What makes them good or bad is their application.

"Empowering ethical codes is vital in all branches of law because without these codes we would be unable to differentiate between right and wrong in our personal judgments. Lawyers can either be the most precious or the most precarious parties in a criminal case, depending on the state of their conscience. In such cases, immorality replaces morality, and legal norms become pawns in a game, the goal of which is to serve the economic interests of the lawyer. The lawyer becomes a greater threat to the truth when they support the establishment of special tribunals meant to hide the truth, such as was seen in Iraq, or when they receive payment in order to cover up genocide in places such as Myanmar and in the territories of the superpowers. Such lawyers then turn around and condemn the same crimes in places such as China. They speak out against crimes against humanity carried out by the Iranian government, but do not say a single word about crimes against humanity, war crimes, and genocide committed by the Saudi Arabian Israeli, American, French, and British governments. Here, doppelgänger attorneys do not present the true image of justice, but rather work to convince the international public that their brutal clients are innocent. The situation is even more complicated when we are dealing with very sensitive questions of international criminal justice under various criminal procedures directed by lawyers in the ICJ, the ICC, or in ad hoc tribunals. What is the nature of integrity, impartiality, conscience, truth, and payments, and why are lawyers increasingly being sponsored and directed by outsiders? This book reveals the forbidden truth-an embarrassment and moral weakness of conscience. The reader can hardly put the book down! Every library should obtain it"--

This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by the Common Law: 'Accountability Correspondence'. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose.

Judicial equity developed in England during the medieval period, providing an alternative access to justice for cases that the rigid structures of the common law could not accommodate. Where the common law was constrained by precedent and strict procedural and substantive rules, equity relied on principles of natural justice - or 'conscience' - to decide cases and right wrongs. Overseen by the Lord Chancellor, equity became one of the twin pillars of the English legal system with the Court of Chancery playing an ever greater role in the legal life of the nation. Yet, whilst the Chancery was commonly - and still sometimes is - referred to as a 'court of conscience', there is remarkably little consensus about what this actually means, or indeed whose conscience is under discussion. This study tackles the difficult subject of the place of conscience in the development of English equity during a crucial period of legal history. Addressing the notion of conscience as a juristic principle in the Court of Chancery during the sixteenth and seventeenth centuries, the book explores how the concept was understood and how it figured in legal judgment. Drawing upon both legal and broader cultural materials, it explains how that understanding differed from modern notions and how it might have been more consistent with criteria we commonly associate with objective legal judgement than the modern, more 'subjective', concept of conscience. The study culminates with an examination of the chancellorship of Lord Nottingham (1673-82), who, because of his efforts to transform equity from a jurisdiction associated with discretion into one based on rules, is conventionally regarded as the father of modern, 'systematic' equity. From a broader perspective, this study can be seen as a contribution to the enduring discussion of the relationship between 'formal' accounts of law, which see it as systems of rules, and less formal accounts, which try to make room for intuitive moral or prudential reasoning.

"An important and thought-provoking addition to the literature on the ethics of lawyers." ---Kimberly Kirkland, Franklin Pierce Law Center The Consciousness of the Litigator investigates the role of the lawyer in modern American political and social life and in the judicial process, and plumbs lawyers' perceptions of themselves, their work, and, especially, their sense of right and wrong. In so doing, the book sheds light on the unique and little-examined subject of the moral mind of the litigator, whose work extends to all corners of society and whose primary expertise---making legal arguments---is the fundamental skill of all lawyers. The Consciousness of the Litigator stands with Michael Kelly's Lives of Lawyers as a must-read for the many law students, scholars, and practicing litigators who struggle to balance ethical questions with the dictates of their highly commercialized profession.

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