One of the claims I understand your guest Professor David Luban to have made on the show today is that an attorney has a moral obligation to do everything permitted by law to further the interests of the client.
我认为这种说法是有问题的，因为对于任何法律允许的行动X来说，它是否在道德上被允许是一个悬而未决的问题。法律可以允许X，尽管X在道德上是不允许的。在这种情况下，如果X促进了委托人的利益，那么律师就有积极的道德义务去做X，即使X是道德上禁止的。
Obviously, this is absurd.
Now, we could make this duty defeasible by introducing a distinction between prima facie duty and actual obligation, such that while an attorney has a prima facie duty to do X if X furthers the interests of her client and is permitted by law, she does not have an actual obligation to do X if X violates some more important prima facie duty -- say, the duty not to pervert the course of justice.
But if we are forced to take this obviously ad hoc maneuver in order to avoid absurdity, then why do we retain the unqualified prima facie duty in the first place? Why don't we change the prima facie duty itself by qualifying it in some sensible way to eliminate beforehand this obvious and predictable conflict?
To the contrary, it seems attorneys (and their clients) have an interest in keeping this duty as free of criticism and restriction as possible, because the fewer the qualifications, the lower the moral standard faced by attorneys, and consequently the lower the risk of sanctions for violating their professional code of conduct in pursuit of their client's interests.
In other words, it seems that attorneys (and their clients) materially benefit from keeping this duty "dumbed down," even though a moment's reflection indicates that it is in real need of sophistication, and that otherwise it will lead to absurd conclusions and violations of moral obligation.
Just some food for thought.
Cheers,
-paul

Paul writes: "The law could permit X even though X is not morally permitted."
To me, the question then becomes: "morally permitted" by whom, or by what standard? Legal prohibitions tend to codify moral standards that have gained acceptance through the political process. Often that acceptance reflects a deep social consensus on moral questions, as with the prohibitions on murder or theft. Sometimes, as with the abortion controversy or de jure segregation, the legal system permits conduct which many people deem immoral.
In a democratic legal system, law and morality will be congruent, or at least there will be a rough congruence between conduct that is legally and morally proscribed. Where conflicts or lacunae develop, as they inevitably do, adjustments may be necessary to conform statutes to evolving moral standards or repeal them altogether.
Paul seems to be referring to these lacunae--the gaps (ideally temporary) between morality and law. If an attorney has an ethical duty to do "everything permitted by law" to further a client's interests, and in so doing that attorney acts immorally, then the law has authorized immoral acts. To me, such a law needs to be abandoned or modified in some way. Perhaps I oversimplify, but to me it's a tautology: the law doesn't (or at least shouldn't) authorize a lawyer to commit an immoral act, unless by "immoral" you're referring to a standard that has not gained enough general acceptance in a democratic political culture to be codified. From the majoritarian point of view, the lawyer's conduct may not have been "immoral" at all.
Though I don't consider myself to be a legal positivist, I'm struggling with the notion that the legal system would authorize a lawyer to do anything that would widely be considered "immoral."
正如你的嘉宾在今晚的节目中指出的，大多数律师会花时间咨询客户如何让他们的行为符合法律，这是他们建议客户行为道德的另一种说法。
我很喜欢今晚的节目，感谢Paul的有趣评论。

The ?blurb? for the episode of Philosophy Talk on the topic of Legal Ethics suggested that the question of the day was whether lawyers are placed in a ?moral dilemma? by requiring them to abide by legal ethics, and whether there is ?a better way to do all of this.? Dr. David J. Luban, Frederick J. Haas Professor of Law and Philosophy at Georgetown University, observed that an attorney may inform a client in a civil matter that he will not take a certain course of action he or she finds repugnant, noting that lawyers often counsel clients about proposed courses of action based on concepts of morality. In contrast, he said, a criminal defense attorney has a greater obligation to assert a vigorous defense on behalf of a client, even if the client is one that he ?knows is guilty.? When one of the hosts asked why the Fifth Amendment protects people against self-incrimination, Dr. Luban said that its absence would encourage the government to ?give him the third degree? and that such means offend concepts of human dignity. But no one discussed the most important historical and philosophical reasons that constitutional protections of criminal defendants are embodied in the United States Constitution in the first place. In fact, one host cast aside the matter without elaboration as ?merely historical.?
The United States Constitution was written by a group of individuals (aka "the Founding Fathers") who had backgrounds in the English common law and classical educations in systems of government and law throughout history. Those men primarily aspired to develop of an effective form of national government that tends to prevent devolution to monarchy, oligarchy, or despotism. Nothing about the Constitution was written to achieve "morality," except in the broadest sense that providing for a government controlled by the individuals governed is "moral," notwithstanding the inherent immoral impulses of the masses (what Madison referred to as the tyranny of the majority) and the unfortunate consequences that inevitably result from the ability of the few to control what information is available to the many.
The protection of the interests of the individual from the power of the new government to create laws criminalizing behavior and to punish violators impelled the founders and the citizens of the colonies to draft and ratify (respectively) the first ten amendments to the Constitution (The Bill of Rights). The rights that pertain particularly to the protection of individuals against law enforcement and prosecutorial functions of government were based on our forefathers? visceral understanding that ? if not expressly prohibited ? the machinery of government WILL do whatever governments in the past HAVE done. The drafters of the Bill of Rights had first-hand experience with Parliament enacting laws and using the police power and the judiciary to crush individual resistance to the will of the Empire by specially targeting political adversaries for criminal prosecution. Some of those governmental mechanisms included making laws criminalizing conduct after the conduct was done; warrantless searches and seizures of homes, papers, and persons; convictions obtained through secret trials; trials using affidavits of suspect origin; use of confessions obtained by torture and threat of torture; cooperation obtained by the use and threat of forfeiture of blood (seizing the defendant?s property and leaving his family destitute); and all of those governmental powers were brought to bear on the individual while he was held in jail without right of bail. The Founding Fathers believed that the use of such powers against the individual was a grave threat to the survival of the newborn representative democracy, and so they forbade government to use them. So that an accused person would have the benefit of the knowledge of those rights and an effective voice by which to assert them, the Founding Fathers guaranteed the accused the right to representation by an attorney.
在流行文化中，人们对政府?使用这样的手段来对付特定的个人是不道德的。这取决于被告是谁，被告被指控做了什么，以及他是辉格党还是保守党。然而，《权利法案》的目的是防止政府在所有情况下使用这种装置。如果政府可以根据特定罪犯或特定罪行在道德上令人反感的程度来免除这些规则，那么对被告权利的评估就必须基于某人在审判前进行的某种道德评估?那是谁呢?警察会进行投票吗?检察官会要求进行特别选举吗?即使能做到这一点，我们的开国元勋们也非常清楚，关于这些事情的决定几乎总是由派系、地方主义和短暂的激情所决定的，通常是由谣言而不是理性的思考和证据所决定的。就像英国法律系统处理政治上有危险的殖民者一样，通过指控他们犯下各种反王权的罪行，让他们闭嘴或以其他方式赶走他们。简而言之，基于对被告道德的普遍看法而允许政府权力的使用，会导致公民治理的共和国迅速灭亡，就像英王使用这种权力击败了各个殖民地的自治政府，最终迫使殖民地人民武装反抗一样。
Permitting attorneys who represent accused persons to alter the manner of the representation based on the attorney?s assessment of the moral worthiness of the client in each case ultimately would have the same effect. Such an attorney would be subject to government, political, and popular pressure to assess the client?s moral value in one way or another and alter the course of representation in the particular case to ensure a conviction. That would be worse than providing the accused no lawyer at all, effectively employing the defense attorney as a co-prosecutor and leaving no one to prevent the government from violating the principles that the Bill of Rights was designed to protect. The ultimate result of such a policy would be the same as if the Bill of Rights had not been ratified in the first place, and the procedures of the Star Chamber had been adopted by the new republic: our form of government would fail.
In summary, in order for our representative democracy to survive, the procedures employed by the criminal defense attorney must be blind to assessments of the ?morality? of the accused and of the crime alleged in the particular case. The criminal defense attorney?s ?legal ethics? require him or her to serve a role as advocate for the defendant against the government and all of its machinery without personal bias or moral judgment. An attorney violates his or her ethical obligations to the system, as well as to the client, if he or she tailors the representation based on individual determinations of what the accused morally ?deserves.? A person who cannot substitute the requirements of legal ethics for his or her own moral assessments when representing a client in a criminal case is not psychologically or professionally fit to act as that client?s advocate; and if he or she proceeds with the representation anyway, he or she has failed his or her duty as an officer of the court and sworn defender of the United States Constitution.
感谢你的阅读。
R. Jones
P.S. The comments that one of the hosts made about lawyers being so well-paid simply does not apply to state public defense attorneys. In most states, the public defense attorneys are near or at the very bottom of the pay range for attorneys, and often earn less on average than the same state?s police officers and public school teachers. And some public defenders have to pay overhead out of their hourly pay, to boot.

我发表这篇文章是希望激发更多的讨论，不是为了显得迂腐或粗鲁。请接受以下内容，本着合作对话的精神。
O'Brien writes, "To me, the question then becomes: 'morally permitted' by whom, or by what standard?"
In reply: I think it is a mistake to interpret the phrase "morally permitted" as meaning that there is a Moral Authority which issues moral permits, just as the Department of Motor Vehicles issues driver's licenses and the Department of Fish & Game issues hunting licenses.
Not to belabor the point, but I do think it's important to get right in order to talk usefully about morality. The point is this: to follow the statement that an act is morally permitted with the question "Permitted by whom?" is to commit what the philosopher Gilbert Ryle called a category mistake. Category mistakes occur when surface similarities in language lead us to misinterpret that language and attribute to it some kind of categorical meaning which it does not have. There is no Moral Authority such that an act is morally permitted if and only if it is permitted by the Moral Authority. Nonetheless, even without the Moral Authority, we can still think about the logical consequences of an act being or not being morally permitted. Nothing keeps us from thinking about such consequences, except fundamentalism that designates those questions as off limits.
O'Brien also writes, "In a democratic legal system, law and morality will be congruent, or at least there will be a rough congruence between conduct that is legally and morally proscribed."
In reply: I disagree. One need only give an acceptable definition of 'democracy', and then adduce obvious counterexamples. Either no state is a democracy, or there exist democracies with laws permitting acts that are not morally permitted. Case in point: the United States is presumably a democracy. In the United States, capital punishment is legally permitted. But killing is not morally permitted, at least not according to a standard interpretation of the Ten Commandments, which seem as good a candidate as any for a list of acts not morally permitted. From this perspective, if capital punishment is killing, then the law permits a morally prohibited act. (I'm not saying I believe the Ten Commandments express moral facts, I'm just using them as an example of a list of putatively morally prohibited acts.)
Further, in a liberal democracy, in which John Stuart Mill's distinction between the public and the private exists, there is an entire domain of activity -- the private domain -- that is categorically free of legal prohibition, because it includes only those acts which do not harm others. If just one act in the private domain is morally prohibited, then every liberal democracy licenses at least one morally prohibited act.
Jones writes, "An attorney violates his or her ethical obligations to the system, as well as to the client, if he or she tailors the representation based on individual determinations of what the accused morally 'deserves.'"
回答:琼斯似乎认为律师可以在道德无知的面纱下对她的客户进行操作。对于客户的一些与道德相关的事实，比如他是否如被指控的那样有罪，这可能是正确的。但就客户的所有与道德相关的事实而言，这显然不是真的。例如，向客户收费的律师显然会根据每小时的收费表来判断他们的客户在道德上是值得工作的。上一位与我谈论此事的刑事辩护律师(出于好奇，而不是因为我需要他的服务)认为，大多数客户在道德上都值得每小时450美元的律师费。他说，在某些情况下，如果他认为客户在道德上值得接受，他会把收费降低到每小时150美元，或者免费。但是，如果他认为某个当事人在道德上不值得为其提供无偿代理服务，那么这个当事人就很不幸了，除非他能支付必要的律师费。这是一个直接的反例，以反驳律师对其客户的道德品质一无所知的说法。
Now, even though there is no Moral Authority, there are entities which issue moral opinions. These include professional ethics boards, such as those hosted by bar associations, which debate about and issue guidelines for the professional conduct of attorneys. Such boards are free to consider any moral dilemma facing attorneys -- not necessarily grandiose moral dilemmas in light of which all our Constitutionally-guaranteed rights might collapse, but ordinary, everyday moral dilemmas such as these:
1. Consider counsel for an insurance company. This attorney acts overtly rude to all claimants with the intention that, should the claimant ever be examined in court, the claimant will spontaneously appear angry and unreasonable at the attorney's questions, and therefore less deserving of a charitable hearing. This is legally permitted, but is it morally permitted?
2. Consider a public prosecutor who repeatedly interrupts a witness in court, knowing that the witness, who suffered head trauma as a child, is likely to react angrily and say things that will damage credibility. Legally permitted, but morally permitted?
3. Consider an attorney in deposition, who baits the deposed using non-verbal communication that will not be entered into the public record as part of the court clerk's transcript, so that the deposed will appear spontaneously to say things that are damaging. Legally permitted, but morally permitted?
这些都是律师经常面临的普通的、日常的道德困境。所以我重复我之前问过的问题:为什么律师协会道德委员会不关注这些问题，并将他们的发现纳入他们的职业行为准则?为什么要把这些道德困境留给个别律师以一种特殊的方式解决，可能会出错呢?我建议的答案是，律师(和他们的客户)通过保持他们的职业行为准则“低能化”而获得实质性的好处，这样他们在从事自己的业务时就不会面临职业指责的风险。
我再说一遍，我这么说是为了促进进一步的讨论，而不是给律师们泼冷水。我敢肯定，类似的论点也适用于任何职业，包括哲学家。
Over & out,
-paul

I agree with Paul that the laws enacted by a legislature in a democracy often are incongruent with morality -- my morality, anyway. ;) More importantly, many laws enacted by legislatures are incongruent with the rational self-interest of both the electors and the electorate. And so, I also agree with Paul that we don't gain much in the discussion by observing that there is no general agreement among people about the source of moral authority, let alone its contents.
Paul also makes several good points about what attorneys do and do not do with respect to charging clients and what attorneys refer to as "tactical choices" in the manner of conducting their work. I suppose that it's fair to characterize those as "moral choices," and I agree that those are the kinds of behavioral choices that are faced by people in many lines of work. Indeed, I would say that those are the kinds of choices that all people face in daily life.
But those are not the kinds of choices that my comment was intended to address. I understood the topic of the program to be focussed on conflicts between "legal ethics" and "morality." My comments were directed at that particular portion of the discussion concerning whether a criminal defense attorney should abide by the directive of legal ethics to present every available defense in a criminal case, even when the client or the client's conduct is morally reprehensible.
一名律师在初审案件中是否选择代表某一特定的人，很可能是由律师的道德感适当决定的事情。我的中心观点是，一旦一个人在刑事案件中担任被告的代理，律师就无权根据律师是否认为当事人“有罪”来决定是否提出可用的辩护，并提出合法的反对意见，更不用说当事人是否“不道德”了。对律师运用其道德价值观的限制对于防止任何刑事司法制度中固有的专制倾向是必要的，如果某一律师在某一特定案件中不能这样做，那么该律师应以利益冲突为由拒绝为该当事人代理。
That is a distinct concept from whether using one tactic or another is "moral." For example, one of the commenters suggested that an attorney should not brow-beat an alleged victim on the witness stand, if the attorney "knows" that the client is "guilty." My answer is that brow-beating a particular witness may be moral or immoral depending on any number of case-specific circumstances -- such as, for example, whether the attorney has a reasonable belief that the witness is committing perjury, and whether the witness is teetering on the edge of sanity. But whether the criminal defense attorney believes that the client is morally worthy -- or even guilty of the offense -- must not be one of those considerations. The distinction between whether the witness is lying and whether the client is guilty may be subtle, but it is important.
当然，还有另一个考虑因素:初审法庭的法官有责任裁判律师在案件的进行中是否越界了，是否越界了，而律师如果在一时冲动或其他情况下做得太过火，就会面临蔑视法庭、支付罚款、入狱和被报告到律师事务所接受纪律处分的风险。律师在法庭之外走得太远，可能会被起诉妨碍司法公正，妨碍警察调查，以及其他任何公民可能被起诉的罪行。
But since Paul has posed another question, I will respond to that as well. He asks: "Why don't bar association ethics boards look at these kinds of issues and incorporate their findings into their professional codes of conduct?" The answer is: They do.
Paul认为在法律实践中“道德问题”的许多问题，实际上都是由州的律师协会法律伦理规则所解决的，例如:禁止律师故意使用法律策略来增加诉讼成本，无论是中计自己的腰包，还是因为缺乏时间或资金而迫使对方在庭外和解;在大多数州，律师被禁止从事某些行为(如追逐救护车和与其他领域的专业人士，如会计和医药)，以不择手段的方式吸引客户到他们的办公室;在一些州，律师被禁止在电话簿黄页上标明他们的姓名和执业范围以外的广告。大多数州都有关于律师如何收费和收取费用的专业规则。至少有一个州甚至有一条规定，禁止律师与当事人发生性关系，除非他或她在代理开始前已经与当事人发生了这种关系(也就是说，你可以代理你的妻子，但你不能与你的当事人结婚)。可以肯定的是，这些规则与“道德”选择有关，但它们与律师对当事人道德水平的评估毫无关系，而这正是我刚才谈到的话题。
No rule or law can articulate every conceivable constellation of facts and considerations that go into making a decision about a particular attorney's conduct in a particular set of circumstances, any more than it can do so for any one else's conduct. Bar associations have disciplinary boards that routinely issue opinions about the conduct of attorneys, and those are often reviewed by courts, which publish written opinions about the findings and conclusions of the boards. Bar publications routinely advise membership of disciplinary actions taken against attorneys, spelling out the particular behaviors that led to punishment by censure, suspension, or disbarment. Many bars require their members to routinely take continuing legal education classes in legal ethics, usually taught by people whose primary employment is working in the field of attorney ethics and discipline. Those courses try to help attorneys organize their practices to prevent problems and to sort through some of the confusing dilemmas that attorneys face. Many state bars provide informal opinions in response to "hypothetical" questions raised by its members, so that an attorney can get some helpful advice before making a difficult decision.
在没有对这个问题进行详细分析的情况下，我想说，在我执业的州，纪律处分最常见的原因是:(1)未能保持一个合理的限制案件量(即，承担了太多的案件)，以便工作能够及时和有效地管理;(2)没有及时通知客户诉讼程序(也就是说，与其说没有及时提交文件，不如说是没有告诉客户正在做什么)。律师资格被取消最常见的原因似乎是未能遵循某种会计程序，以确保客户的聘用帐户不会过早地与律师事务所的帐户混合在一起;例如，在申请费实际缴付前，从聘用帐户转款支付申请费。这些失败被认为是严重的——即使没有客户指控律师有欺诈或盗窃行为——因为未能保持适当的会计方法意味着糟糕的财务判断，这可能会损害客户，并使发现(或证明)欺诈或盗窃变得困难。
In other words, most questions of attorney ethics relate to whether an attorney is staying on top of things, and not whether the attorney is making choices base on sound moral principles. Attorneys are seldom faced with "great moral dilemmas" that conflict with their ethical responsibilities as lawyers; and when they do, there seldom is any clear or categorical answer to the problem -- even within the fundamentalist's religious precepts. In fact, one of the most common problems that attorneys have in navigating the shoals between moral values and legal ethics have to do with the rules that make reporting suspected child abuse mandatory, even when the suspicion has nothing to do with the attorney's law practice or clients. That kid next door whose parents are always yelling and who routinely has scrapes and bruises -- do I have the responsibility to risk retaliation by the parents and investigate whether the injuries are from skateboarding or child abuse? Do I have to call Children's Services or risk being disbarred? Apparently, I do.
But for most lawyers, the moral dilemmas faced on a daily basis involve whether to work until 10:30 p.m. to ensure adequate preparation for the next day's proceedings or go home and have dinner with the family and read a bedtime story to the kids.
Thanks for the chat. Now I must get back to work! :)
R.Jones

"Not to mention prosecutors, who, if my sources of information, mostly television shows, are to be believed, regularly browbeat people into copping pleas for crimes they didn't commit."
Wait till you hit Family Law and child support. They beat down men for federal funding under Title 42 IV-D Progarm. You'll be surprized, it's a lawyer's dream job.

人们经常会问这样一个问题:如果一个当事人向他们的律师承认他们犯下了绝对令人发指的罪行，应该受到严厉的惩罚，那该怎么办?律师代表当事人并努力争取无罪释放是道德的还是道德的?
Answer: The law as written allows for acquittal subject only to prescribed due process without conditions being placed on the defense attorney, so there is evidently no other societal obligation. Therefore, to the extent that ethics or morality is defined by societal demands, achieving acquittal is moral and ethical, although it?s interesting that this includes possibility of repetition of the crime by an admittedly guilty party.
However, the descriptions ?heinous? crime, and ?severe? punishment imply something further. An additional ?clue? is that, strictly, it should be legal punishment rather than simply punishment. Thus we conclude that the question actually refers to a further standard. The implication is that a ?heinous? crime always ?deserves? some degree of commensurate SUFFERING by the perpetrator rather than simply accountability to society, which has already been settled (forget how to punish a masochist). Clearly, morality and ethics in this instance is being referred to other unstated premises. Ya? takes yer? choices!