Is it &quot;unethical&quot; for a lawyer to argue both sides of a point of law? In other words, is hypocrisy a frowned upon or even a disciplinary matter? Suppose a lawyer has two clients and the circumstances don't warrant a &quot;conflict of interest&quot; problem under the rules of professional conduct. The two clients aren't doing anything related to one another, but on just one question of law it is helpful for one client to argue one way on the question and helpful for the other client to argue the other way on the question. If a judge or anyone else sees a lawyer trying to have it both ways, is that a problem? If this is an impossible situation such that this is, by definition, a conflict of interest, imagine the two clients waived the conflict of interest so that the lawyer could represent both of them. Imagine this sort of dialogue. Tuesday Lawyer: &quot;Your honor I really think that statutory definition of a week means the time starting from the Monday after the action took place to the Friday following that Monday. Here is the case law on that matter.&quot; Wednesday Lawyer: &quot;Your honor I really think that the statutory definition of a week means from the time the action took place until 7 days following that time. Here is the case law on that matter.&quot; Judge: &quot;Hey, just yesterday you said you thought the statutory definition of a week meant something else when you were representing another client. You sound like a hypocrite to me.&quot;
Not only would it not be unethical to argue both sides of the issue, if the lawyer argued both sides of the issue and won on both sides, this would be proof that the lawyer is an excellent lawyer. Because the victory would be based on the lawyers skills and not on whether the law leans one way or the other. Speaking of ethics, I believe it would be unethical for a lawyer not to argue on behalf of one of his clients. A lawyer is required to represent each one of his clients zealously. If this means the lawyer has to argue both sides of an issue, as long as there is no conflict of interest between his two clients, then the lawyer must do so. Our system is an adversarial system. The system is designed to get a just result by having each side argue their own position in an adversarial setting. This means that the opposing lawyer could argue that the first lawyer is arguing both sides of the issue in different cases. However I believe a good judge would find that lawyer's argument to be irrelevant. Because the only arguments that are relevant would be the arguments based on the law and the facts of each individual case. In other words it would not be relevant for the opposing lawyer to argue that this lawyer frequently argues both sides of the case. As long as he is not doing so in this one specific case.
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.
I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well.
Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics
What's the use of contracts if you can't take a contract violator to court? A clear, thoughtful contract can be a deterrent to misconduct, and Australia is one of many jurisdictions where pro se litigation is allowed. Self-represented litigants certainly have to undergo a steep learning curve and are expected to comply with a code of conduct, procedural law, and so forth, but my point is that hiring a lawyer is not compulsory. Even if for some reason the defrauded party declines to sue the tortfeasor (thereby forfeiting the recovery of the losses), there is a societal obligation to alert others about the tortfeasor's misconduct. Making the contract available to others facilitates alerting them on objective grounds so they don't become the tortfeasor's next victim, and it simultaneously helps for setting the record straight that the damages/losses were not one's own fault. Without a contract, it would be more difficult for others get a sense of whether misconduct occurred at all. Or worst, halfway down the line, you don't have any money left to pay your lawyers, and they leave the case. Hence the importance to litigate in pro per from the start. It is easy for a person retaining a lawyer to postpone (be it due to family obligations, workload, and so forth) his learning of the law. But that postponement only makes the client more vulnerable to his lawyer's subsequent withdrawal when court proceedings are midway: the client would have the dilemma of either finding another lawyer to resume the case --predictably at a higher cost--, or cram the learning curve in trying to keep up with the proceedings.
The first thing to keep in mind is that, before appearing on the stand, an expert witness will have given a sworn deposition and delivered a written report of his or her findings. They could expect to be questioned about anything they say under oath that contradicts something else they said under oath. It’s not illegal for an expert to admit they were wrong before, or that there are other facts that support a different conclusion—indeed, a witness on the stand might be obligated to—but it might not do their professional reputation and their credibility with the jury any good, either. In the U.S., the opposing counsel is generally allowed to contact a witness, and take a statement, but may not ask the witness to testify falsely or offer any inducement prohibited by law. (See Supreme Court Rule (SCR) 173/Model Rule (MR) 3.4.) It would certainly be illegal for a witness to take money from both parties in the case without informing them or the court, or to swear that whatever the highest bidder pays them to say is their expert opinion. If this happened under direct examination, the lawyer would probably cut their losses by asking no further questions and getting the witness off the stand. Putting the witness on the stand would give the other side an opportunity to cross-examine them. Grilling your own expert as a hostile witness, even if the judge allowed it, would only make your position seem tendentious. Nothing stops an expert witness from giving testimony that is more helpful to the other side. They are witnesses, not lawyers, and their duty is to tell the truth, not to zealously advocate on behalf of some client.
On the contrary, it is unethical for a prosecutor to bring a case where there is no reasonable prospect of conviction. The prosecutor is an officer of the court and as a representative of the state, their primary concern is the guilty are convicted and the not guilty are not.
Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' &amp; judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter.