There is a common belief that the ethics of the legal profession is based upon a virtue ethics model. Namely that our goal is to be the best lawyer that we can be based upon a concept of what the perfect lawyer is. There is a focus on the pursuit of justice as a primary aim among other things.
The problem with that conception is that it does not provide us with a basis to balance our obligations to a number of parties within the system. How do we choose when there is a conflict between various obligations to parties. What do we do when a lawyer's duty to a client conflicts with broader obligations to either society or the court.
I think there is a realistic argument that we could, instead, use a utilitarian ethics model in which we assess our individual obligations based upon a utility model aimed at achievement of justice. The problem with this approach is that it would require us to evaluate these procedures on a step by step basis rather than having a broad set of rules and therefore there would be concerns about uncertainty. One method of resolving this would be to use the two step utilitarian analysis of Richard Hare - develop a broad set of rules but acknowledge there are circumstances of conflict in which one value or another may have to be given up. If there is a consistent patter of sacrificing one rule then we will end up having to modify the rule.
However, I think that there may be a model based upon duty ethics that could work and this will be something that I intend to explore over the next few months. In the long run I would like to test the duty ethics model against the utilitarian ethics model and determine how they will resolve issues of privilege and confidentiality.
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