Legal ethics beyond escaping disbarment

The results of the 2018 bar exams have just been released, once again triggering discussions about the impact of lawyers on society.

Among the bar exam subjects is Legal Ethics. Many agree that lawyers should be ethical. Many people have stories of how unscrupulous lawyers have destroyed their lives or those of people they know. Thus, Legal Ethics has been made a subject matter for the bar exam, and lawyers have to periodically attend lectures on Legal Ethics as part of their Mandatory Continuing Legal Education (MCLE).

But are these enough to make lawyers ethical?

In the Philippines, norms of legal ethics are articulated in the Code of Professional Responsibility as a set of duties that lawyers have toward society, the courts, their clients and their colleagues in the profession. Based on my experience in law school and MCLE lectures, the teaching of legal ethics has been limited to the canons of the Code of Professional Responsibility and related jurisprudence. The focus is on what a lawyer should or should not do to escape disbarment.

The Code of Professional Responsibility is useful. But a listing of duties that lawyers must comply with on the pain of disbarment is not enough to prevent them from messing up society.

For one, what should a lawyer do when conflicts among these duties arise? How should a lawyer resolve conflicts between his or her duty to the courts and to society, on one hand, and to the client, on the other?

Then, there is the lawyers’ ability to “lawyer” themselves out of the Code of Professional Responsibility, enabling them to do unethical acts without violating the literal text of the code’s canons.

Furthermore, the Code of Professional Responsibility does not answer all the possible ethical issues that lawyers may encounter in the exercise of their profession. For example, when a prospective client approaches a lawyer asking for help in obtaining a declaration of nullity of marriage, the lawyer must ask: Is the prospective client trapped in what is really a void marriage, in which case he or she must be helped? Or is the prospective client, in reality, asking the lawyer to aid and abet an illicit extramarital affair? The Code of Professional Responsibility alone cannot answer these questions. But they make a difference between the lawyer mending or ruining society, between a lawyer acting ethically and acting unethically.

In her book “Deontologia Profesional del Abogado,” Angela Aparisi Miralles identifies three principles on which legal ethics is founded. The first is the centrality of the person and his or her dignity, considering that the legal profession is practiced by persons and is in the service of persons. The second is the end (telos) of the legal profession, which is the defense of rights and maintenance of justice in social relations. The third is professional virtues, with an emphasis on prudence, defined as the capacity for good judgment.

These principles raise questions: What does it mean to be a person with dignity? What is justice? What are rights? What is virtue? How do these concepts apply in law practice? Is there room for such concepts in legal practice, or should a lawyer, as I heard someone once say, keep values out of the courtroom?

To promote the ethical practice of law, it is necessary to challenge lawyers to shed off the cynicism and the moral relativism prevalent in the legal profession, which keep them from aspiring to ethical standards beyond merely escaping disbarment. In addition to teaching the Code of Professional Responsibility and the jurisprudence related to it, education in legal ethics must impart wisdom. No less is required in order that lawyers will, in the words of Miralles, obrar segun ciencia y conciencia (“act according to science and conscience”).

Lawyer Cristina A. Montes holds degrees in humanities specializing in philosophy from the University of Asia and the Pacific (1997), and in law from the UP College of Law (2005) and the Universidad de Navarra in Pamplona, Spain.