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WEEK 2: ETHICS AND LAWYERING:

Different Lawyering Styles:


1 Adversarial Advocacy: The Traditional Conception of Legal Ethics (Parker and Evans)
Four types of legal ethical types:
i Adversarial Advocate (Traditional conception):
Lawyers ethics are governed by role as advocate in adversarial legal process and
complex legal system: Partisanship (look after clients interests), loyalty and nonaccountability (to others).

Duty to advocate clients interests as zealously as possible within the bounds of the
law.Let the chips fall where they may

ii

Responsible Lawyer (Officer of the court and trustee of the legal system):
Lawyers ethics governed by role of facilitating the public administration of justice
according to law in the public interest

Duties of advocacy are tempered by duty to ensure integrity of and compliance with the
spirit of the law; to ensure that issues are not decided on purely procedural or formal
grounds but substantive merits. Lawyer is responsible to make law work as fairly and
justly as possible.

iii

Moral Activist (Agent for justice through law reform, public interest lawyering and
client counselling):
General ethics, particularly social and political conceptions of justice, moral philosophy
and promotion of substantive justice define lawyers, responsibilities
Lawyers should take advantage of their position to improve justice in two ways (1) Public
interests and law reform activities and (2) Client counselling to seek to persuade clients of
the moral thing to do or withdraw if client wants something else

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Ethics of Care (Relational lawyering):


Social role of lawyers is irrelevant. Responsibilities to people, communities and
relationships should guide lawyers (and clients) as everybody else
Preserving relationships and avoiding harm are more important than impersonal justice.
The value of law, legal institutions and institution a; roles of lawyers and others are
derivative on relationships. People and relationships are more important than institutions
such as law. The goal of the lawyer client relationship should be for the moral worth and
goodness of lawyer and client, or at least the nurturing of relationships and community

Philosophy of ethical Theory: (How it can be used in practice)


1 Utilitarianism: Greatest good for the greatest number

Rightness or wrongness of an action depends on consequences instead of intentions. The right


action is the action that produces the greatest overall amount of happiness and pleasure. See
ethics to the question of what have I ought to do (Same as Deontological)

Morality of an action is to be determined solely through an assessment of its consequences


They have to address themselves to several questions
i
The yards to utilitarian in terms of which consequences are measured, have to do whatever
ii

provides the greatest amount of utility (pleasure, happiness)


Need to indicate how the consequences can be measured. To provide an account how the

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yards can be applied and measured


Question of how high their standards are or how much utility we must strive for (How much

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is enough utility). A more stringed should be assumed


Indicate what types of things have been charged in terms of their consequences. (acts, rules

and social policies)


Answer the question of whom these consequences are for (not just for the individual agent).
According to Benthem we should act in such a way to maximise pleasure and minimise pain
BUT it should just be happiness.

Deontology: (ethics of duty) Virtue of the work by Emmanuel Kantian.


Always act for the sake of duty because its the right thing to do, and act in a way that the maxim
behind your act can be permissible as a universal law. See ethics to the question of what have I

ought to do.
An acts moral worth depends on the reason its done, its not enough that an act conformed duty, it
must also be done for the sake of duty, out of a concern of what is morally right not out of some

self-serving motive
What gives an action a moral worth, self-interest as a standard, Kantian focuses on duty, it
challenges an egotists precision
A second principle centres on the universality of genuine morality. Henmum states on page 182
that one of our basic intuitions centres on the belief that what is fair for one is fair for all. But
there are exceptions e.g. an ambulance driver is allowed to disobey traffic lights in the matter of
an emergency although with proper caution and is applicable to anyone with that role
Hemen the formulating of maxims: Actions begin with motivating actions that promise to act in a
particular way. Whether the maxim is one that it would be possible for everyone to consistently
and rationally accept. If it is the action is morally permissible. Morality consists of what any
rational being would do in the situation, involves setting aside our own personal preferences and
potential gains in order to do the right thing

Virtue ethics and Ethics of Aristotle


Answering the question: What type of person should I be? Strengths and weaknesses of character.
Focus is on the development of the character of the actor, character of the person who is going to
conduct themselves, character of the person who needs to make a decision.
i
Virtues are strengths of characters that promote human flourishing.
Prudence, justice, fortitude, bravery or courage, and temperance. Fidelity and self-care.
Represents a good life, where someone needs practical wisdom with a combination of an
attempt to live the good life by developing practical wisdom and encouraging the different
virtues.

Produces an insight into ethical pluralism


Virtuous person always acts in a light general conception of human flourishing. E.g. of telling
the truth, cant lie because of its consequences and a virtuous person is to balance them and
admit all are relevant and what is the best balance for all. Uses moral theories to illuminate the
moral landscape and to serve a path toward the good life
ii

Whereas vices are those weaknesses of character.