Can there ever be a conflict between law and professional ethics in the practice of law? Tl;dr version. The so-called &quot;ethics/law divide&quot; is often discussed in the context of non-legal professions. Does such a divide exist in the practice of law or is it a contradiction? The ethics of quite a number of professions acknowledge at least a theoretical possibility that breaking the law might be ethically justifiable or even necessary. The classical example is a physician practicing under an oppressive regime who is ordered to perform experimentation on political prisoners or assist in a genocide. Most medical ethicists would agree that the physician has a duty to refuse to participate regardless of whether such refusal results in civil or criminal liability attaching to the physician. An article from the perspective of medical practice is Where the law and the ethics conflict? from the joint AREC, UK Clinical Ethics Network Conference ‘Ethics in Common’. For a discussion of some potential practical examples of ethical/legal conflict and dilemmas in the practice of social work, see the article &quot;When Ethics and the Law Collide&quot; from Social Work Today. At first glance, it seems that these ethical principles would not apply to the practice of law, since lawyers derive their professional competence to practice, even their reason for existence, directly from the law and the courts rather than practicing despite the presence of laws and courts potentially trying to steer them astray from the principles of their professions. That is, physicians, social workers, nurses, physical therapists, clinical psychologists, dentists, teachers, child care workers, etc. walk a fine line every day between upholding the ethical principles of their professions while at the same time remaining subject to the law and its own requirements. They have two &quot;masters&quot;, so to speak. Lawyers have no master but the law. Is there any precedent either way (in any jurisdiction or before any court) on whether there can or cannot possibly be an ethical/legal conflict or dilemma with respect to the practice of law? An example of such a conflict might look like: I'm a lawyer admitted to the bar in Ruritania. A new Ruritanian statute (cite) requires all lawyers to affirmatively report to the police all clients &quot;who have made anti-government statements or who are reasonably believed by the lawyer to have participated in an anti-government protest in the past three years&quot; under penalty of imprisonment and fine of the lawyer, but the latest bulletin of the Standing Ethics Committee of the Bar Association of Ruritania asserts that complying with this law is unethical and that lawyers who comply will be disbarred regardless of whether the law is upheld as constitutional or not. What should I do? What can I do? From another perspective, could there be a scenario where legal ethics permit or even require a lawyer to violate constitutional statutes, commit blatant crimes, disobey valid court orders, knowingly remain in contempt of court, disregard prevailing rules of court, insult or threaten a judge, or otherwise get &quot;in trouble&quot; with the law in the name of upholding legal ethics, or is adherence to the law above all else the sine qua non of legal ethics? Bringing everything back to the beginning, do lawyers living and practicing under oppressive regimes have some ethical duty to help themselves or their clients disobey blatantly &quot;wrong&quot; laws? In other words, can the law itself be unethical enough that lawyers are not professionally obligated to follow it? Plenty of extreme or not-so-extreme hypotheticals can be considered. For example, suppose a law is passed banning gay people from receiving legal representation. You (a lawyer) have investigated this law and found no reason for it to be unconstitutional, invalid, or otherwise unenforceable, because the laws in your country just suck that way. Can you justify representing a gay person in violation of this law as your ethical duty as a lawyer who believes that access to counsel for everyone is a fundamental ethic of lawyering, or would such an action be a textbook example of unethical legal practice? Just to be clear, this question is from the perspective of the theory and philosophy of law and legal practice rather than a question about any specific jurisdiction. If this has been formally addressed in any specific legal system or jurisdiction, an answer from the perspective is welcome. For example, &quot;The Supreme Court of Canada specifically ruled on this in 1973, here's what they said....&quot;. Also to be clear, this question is about organized professional ethics (e.g. as ruled upon by bar committees and discussed in legal studies journals) rather than personal or religious moral codes.
united-states In General In the U.S., the ethical rules contemplate circumstances in which a valid statute may authorize or require a lawyer to act in a manner contrary to the rules of professional ethics that generally apply to U.S. lawyers. But, the converse is not true. There are no circumstances under which the rules of ethics provide that violating the law is ethical. In particular, the rules of ethics for lawyers state that: A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. A lawyer is required to vigorously represent their client's interests, but this is subject to the requirement that a lawyer not allow his or her services to be used to perpetrate a crime or a fraud. Threats Of Criminal Or Administrative Action The closest the rules of professional ethics come to something similar is the rule (which varies in detail from jurisdiction to jurisdiction that have this rule and is omitted from the ethical rules of some jurisdictions) is the prohibition as a matter of professional ethics, against threatening to bring criminal charges, or to seek ethical or administrative remedies, to gain advantage in a civil lawsuit. Colorado's rule on this issue is here, but this has been dropped from the Model Rules of Professional Conduct that the ABA recommends that all states adopt. Dealing With Misconduct By An Entity Client Another similar situation involves the protocols that a lawyer for a corporation or other entity that believes that the entity is acting or about to act unlawfully must follow. This basically involves trying to get the entity to change its conduct by all available means as opposed to going public as a whistle blower, and often forbids a lawyer from revealing his or her client's misconduct learned about in his or her capacity as an attorney for the entity (in cases involving misconduct not facilitated by the lawyer's own services). Duties That Don't Apply To Lawyers And, there are some duties that apply to the members of the general public, but do not apply to lawyers. No Duty To Report Past Client Crimes For example, there are certain crimes that, in some jurisdictions, there is a duty to report. But a lawyer does not have to report an already completed crime of a client that is disclosed to the lawyer in confidence. But this is really more a matter of the scope of the duty to report than it is of ethical rules authorizing a lawyer to violate the law. No Litigation Related Defamation Liability Another generally applicable law that does not apply to lawyers is the law of defamation in certain circumstances. Statements made by a lawyer in the course of representing a client in litigation or in anticipation of litigation are subject to a litigation privilege from defamation liability, although they could still be sanctioned by the court presiding over the case being litigated, or by the professional ethics authority for the jurisdiction, if the statements that would otherwise be actionable as defamatory violate ethical rules regarding public statements about litigation (also here). This litigation privilege was invented to prevent ordinary lawsuits from triggering satellite litigation in parallel cases over statements made by lawyers in the course of litigation, instead consolidating that authority in two sets of public officials (the presiding judge in the case and the ethics enforcement authority) that are not under the direct control of the litigants. It serves a purpose similar to the rule prohibiting threats to seek criminal or administrative sanctions for the purpose of gaining advantage in a civil case. Not All Violations Of The Law Are Ethical Violations Also, there are violations of the law which are not violations of a lawyer's professional ethics - for example, failing to pay a personal credit card bill, or speeding, or parking illegally. But this is simply because there is not an ethical rule that expressly says &quot;it is unethical to ever violate any law&quot;, not because there is an ethical rule that states something along the lines of the means justifies the ends in some circumstances. But it is also the case that some violations of the law by an attorney unrelated to the practice of law itself are still considered ethical violations, for example, if it &quot;reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.&quot; (Sometimes this is referred to as the &quot;officer and a gentleman clause&quot; in reference to a Uniform Coded of Military Justice prohibition that is similar in character). Fiduciary Duties To Put A Client Above Oneself Beyond the formal ethical rules for lawyers, lawyers are also fiduciaries for their clients. Fiduciaries are generally required to put their client's interests above their own. So, for example, suppose that a client will lose his claim if a lawsuit is not filed by the statute of limitations, and the lawyer will violate the law by failing to file his tax return on time which is due with no further extensions on the same date as the statute of limitations, and the lawyer has the ability to do one or the other but not both. A lawyer's fiduciary duty to his client would probably require him to file the lawsuit for the client, even though this would mean that the lawyer would necessarily violate tax laws by not filing his own personal tax return on time. But again, that is more like guidance in a trolley problem that arises for no fault of the lawyer's own, and less like a justification for breaking the law. The lawyer's failure to file his taxes on time is not justified or excused by his fiduciary duty to his client, it is simply a matter of choosing to avoid harm to client over avoiding harm to himself or herself when the conflict arises from the lawyer's arguably unethical procrastination (another professional ethical obligation of an attorney is a duty of diligence in work for clients, at least). Situations When The Law Is Unclear Another issue that comes up is that the law is often not perfectly clear. This is why we have lawyers at all. Legal ethics somewhat address the situation in which some official has declared that certain actions are illegal or are required, but the lawyer, on behalf of a client, defies the order because it is believed to be unlawful. There are some circumstances where it is permissible to do this (e.g. an unlawful order from a law enforcement officer), and there are other circumstances where it is not (e.g., an incorrectly decided preliminary injunction entered by a judge. that is being appealed). But in all cases, once the law has been determined as applied to a particular case finally and beyond further opportunities to dispute that decision, a lawyer must comply. For example, the ethical rules for lawyers provide almost universally in the U.S. that a &quot;lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.&quot;
There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature.
As George White says, it's hard to prove a negative, but in this instance, there's quite a bit of evidence supporting you. First, the ABA has standards for legal commentators but they are very weak. They say pretty much what you would expect, and, they are non-binding: they explicitly say they &quot;not intended&quot; to provide grounds for &quot;professional discipline.&quot; Second, there are articles by lawyers indicating there are no state bar standards. Taken together, the weak ABA standards and the articles should give you enough evidence to prove your case in the &quot;court of buddy opinion.&quot; The ABA rules on legal commentators were issued in 2013 as part of a Fair Trial and Public Discourse Black Letter. The letter covered public comments on cases by lawyers involved in the case, lawyers not involved (ie, commentators) and judicial and judicial employees. According to the ABA, the standards are: intended to provide a guide to best practices for lawyers who provide public commentary or consult on criminal cases in which they are not personally involved; (Standard 8-1.1(a)(ii)) To explain what it meant by a &quot;guide to best practices,&quot; the ABA included the following caveat about the applicability of the standards: While these Standards are intended to provide a basis for the formulation of internal guidelines within lawyers’ offices...they are not intended to serve as the basis in and of themselves for the imposition of professional discipline...(Standard 8-1.1(c)) In other words, the ABA's rules truly are just a guide to best practices. As for the guidance itself, it does not come close to requiring &quot;due-diligence.&quot; A lawyer who is serving as a legal commentator should strive to ensure that the lawyer’s commentary enhances the public’s understanding of the criminal matter and of the criminal justice system generally, promotes respect for the judicial system, and does not materially prejudice the fair administration of justice, in the particular case or in general. To that end, a legal commentator should: (i) Have an understanding of the law and facts of the matter so as to be competent to serve as a commentator; (ii) Refrain from providing commentary designed to sensationalize a criminal matter; and... It may be that some states provide more stringent restrictions, but a quick search suggests they don't. Otherwise, there would not be a law review article arguing &quot;The Legal Profession Must Broaden Ethical Standards for Legal Commentators,&quot; or an ABA Journal article (from this June) giving advice on becoming a legal commentator without mentioning state bar restrictions. I'm sure if you look, you can find more evidence.
The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to &quot;make a case&quot;. The &quot;court of public opinion&quot; may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form.
The most important consideration is whether you're giving advice "as" something special. An example would be claiming to be a medical doctor and advising people to do something clearly harmful such as "take 10 Tylenol and call me next week". In such an extreme case, there could be criminal charges. Less severe would be an accountant giving grossly wrong and incompetent tax advice to a client, in which case the accountant could be civilly liable. (For instance, telling a client "you don't have to declare royalties for textbook sales"). In such cases, a client depends on the professional to give competent advice, and you rely on him to work according to a certain professional standard of care. There is a difference between the standard of care that an ordinary "reasonable person" owes to any other person, and the standard of care owed by a professional in an area. What would be excusable bad advice that I might give on how to build a wall would be inexcusable if given by an engineer. The basic idea is that if you interact with a person (even indirectly, manufacturing something that a 3rd party buys), you have a certain duty to be cautious. If this is just an ordinary-person on ordinary-person interaction, then the parties (both parties) are expected to exhibit the degree of caution that a "reasonable person" would exhibit (attempts to pin down what a "reasonable person" would do have proven impossible, though juries always know subjectively what a reasonable person would do). However, your duty to not give bad advice is offset by the advice-taker's duty to not take bad advice – that is, if a reasonable person would know that taking 10 Tylenol is a bad idea (thus I, as a non-physician might have some duty to not give such stupid advice), then the person who stupidly took 10 Tylenol was contributorily negligent in taking the 10 Tylenol. As far as I can tell, if you do not represent yourself as a member of a technical guild (lawyer, doctor, accountant, many others) giving technical advice in that capacity, and you are not directly contracting with a person (i.e. they hire you to give them advice on how to keep your yard from falling over the cliff), then you can say stuff like "If X, then you should Y", and not have to pay if someone does that Y and they suffer a loss.
What are the ethical rules that limit interaction between civil and criminal proceedings on the same facts? A private lawyer's job is to look out for the client's interests before the public interest in these cases. In many states, a private lawyer is not permitted to threaten to seek a criminal prosecution to gain an advantage in a civil action. A private lawyer, myself included, will often deliberately not pursue criminal charges in order to not impair the ability of a client to collect a judgment. A prosecutor has wide discretion to prosecute or not when the prosecutor is aware of a crime that there is probable cause to believe was committed. A complaint by the victim is not required in the U.S., but most prosecutors consider a victim's wishes. A prosecutor may ethically make prosecution dependent upon making a victim whole. So is this conflict and result just an "unfair" fact of all common-law justice? What is "fair" is beyond the scope of Law.SE which deals in "what is", not in what is "fair". Or are there mechanisms that exist to satisfy the demands of justice despite this conflict? Not really. Just the good judgment of the individual actors in the system given their respective duties and roles.
There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity.
It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial.