This interview is based on research by César Arjona
Have you ever wondered why lawyers defend even people whom they suspect are guilty? It turns out attorneys are just doing their job, argues César Arjona, associate professor of Legal Ethics at Esade, in the Canadian Journal of Law and Jurisprudence.
Do Better: Does defending someone who is guilty make an attorney immoral?
César Arjona: In the field of legal ethics, there’s an amorality theory that states that lawyers are not responsible for what they do as long as they are representing their clients within the law. This opens up a big question...
How can criminal lawyers defend someone who they suspect is a child molester?
If you are a citizen helping a paedophile, your behaviour is obviously immoral: if you have information about a child molester, your duty is to go to the police immediately and report this wrongdoing.
However, as an attorney, your legal obligation is to keep the secrets of your client and not to go to the police, as that would make you a very bad lawyer indeed. Attorneys have a legal obligation to protect their clients and to ensure they have the maximum guarantees during the legal process.
Something clearly immoral from a personal perspective can be justified from a lawyer’s point of view
So lawyers are not incurring in immoral behaviour?
They are not, because it’s not the attorney as a person who is helping this presumed child molester. It is the lawyer within an institutional context, and it is this context that justifies the role, rights and obligations of the lawyer. Something clearly immoral from a personal perspective – such as retaining information obtained from a criminal – can be justified from a lawyer’s point of view. This amorality theory allows lawyers to do things that would be considered immoral from a personal point of view.
For instance?
I always show my students an example of a famous lawyer in the United States who defended a very unpopular client – a rich man who had been found guilty of killing his wife. When confronted by public opinion, the lawyer responded that he was not defending a murderer but a legal process that is there to help people with no resources who cannot afford to pay a lawyer like him.
Even though he suspected that the husband was guilty, he strongly believed that he had been judged in ways that had not been completely respectful of the legal process, and his duty as a lawyer was to make sure that the process was strictly respected.
What do you reveal in your research findings?
I show how this amorality theory works well for criminal defence cases, where the legal context is very clear and stable. However, when you look into other areas of legal practice, this theory becomes highly problematic. In particular, lawyers operating in transnational environments work for large corporations and in very diverse contexts where the legal conditions keep changing.
When attorneys work in negotiations involving several countries, they may be increasingly beyond the scope of any identifiable rule of law system. In a way, they are no longer attorneys; they are acting as legislators, as political influencers...
In what way?
In my research, I use a paradigmatic example to demonstrate this: the BTC case, a pipeline project carried out by some of the world’s largest oil companies, which required crossing several countries with different legal systems.
For this pipeline to happen, the lawyers in this case – led by a law firm based in Texas – brought together the governments of the three countries involved (Azerbaijan, Turkey and Georgia) and worked with each of them to draft and sign a separate contract with the BTC consortium as well as an intergovernmental treaty among the three countries, which was drafted by the same lawyers. The contracts included very controversial aspects such as clauses exempting the companies from basic legal obligations.
Lawyers working in transnational environments may be operating beyond the scope of law
Is that legal?
The problem is that as long as lawyers are working in transnational environments they may be operating beyond the scope of law of any particular legal system. If you look at it from a legal perspective, what these lawyers were doing was the same thing that lawyers working for governments do when they draft international treaties. They literally created a new domestic and international law within and between the countries involved to make the pipeline possible. They were operating beyond the rule of law.
Is anyone legally supervising the potential conflicts of interest?
That’s my point. This is a simplified version of what happened, but imagine that in order to build the pipeline you need to expropriate ground from an indigenous group. As a lawyer, you draft a binding contract where the states commit to not only disregard the interests of the people living there, but also to compensate the companies if they are found liable in a court of law for the damage caused to the indigenous group.
This sounds very immoral...
This is difficult to justify from a justice point of view. But my point is that if you confront one of the lawyers by telling her that what she is doing is immoral, the lawyer cannot consistently resort to the standard “amorality” answer by claiming that she is only doing her job and following her client’s instructions. Rather the opposite: the conclusion of my paper is that she cannot justify herself that way, because the scope of the amorality theory doesn’t extend to this kind of case.
Back to the child molester example: what is the difference?
For the amorality theory to work, you need three conditions. First, there must be a genuine relationship between the lawyer and the client as individuals. Second, that relationship must happen within the context of a litigation process. And third, it must take place within the context of a rule of law.
In the BTC case, none of these three conditions were met. As is typical in big commercial law practice, the individual lawyers were part of large law firms working for large transnational corporations. Rather than having a lawyer and a client talking to each other, you had a complex scenario with many different players, interests and power relations.
The dealings were taking place beyond any rule of law system
There was no litigation process involved but precisely the opposite: part of the rationale behind the agreements was to nullify the result of litigation if it ever were to happen. The dealings were taking place beyond any rule of law system in any meaningful sense of the term. In fact, rather than abiding by the laws of the countries involved, the lawyers were literally making things up. When I say “things," I mean the law. Under these conditions, in my view, they do not have the moral protective shield that the theory of amorality provides in the more traditional domestic context.
Transnational law can be a backdoor for corporations...
It can. I’ll give you an example. The legal documents the lawyers drafted say that many of the legal exemptions are justified by the international law principle of free transit of petroleum. The problem is that this principle did not exist – they made it up! But now it does exist, precisely because they included it in the documents and the states went along with it. So if a similar conflict arises tomorrow in a different part of the world, there is now a precedent in place.
That’s scary...
From a political and ideological point of view, it is quite scary. From a moral viewpoint, it’s very challenging because when you as a lawyer are literally creating the law, you can no longer say that you are not morally responsible. Can you imagine a member of parliament declining any moral responsibility for the law she votes for or against? These lawyers have the actual power to create laws without a democratic process.
When lawyers are literally creating the law, they can no longer say that they are not morally responsible
Professionally speaking, a criminal lawyer is not morally committed to what a child molester does. But when you take the amorality theory to these transnational fields, you can no longer hold that in a consistent way, because the conditions that sustain amorality are simply not there.
The lawyer who came up with the principle of free transit of petroleum is morally responsible for this idea. Of course he can try to defend it on substantial moral grounds, but not by simply claiming he was following his clients’ instructions and advancing his interests. If this action has terrible outcomes for the environment or for social groups, the lawyer deserves the moral blame proportional to his contribution.