Justice? Really?
The other day, I was wearing an old t-shirt that I hadn’t worn in some time. It was the Justice Jam t-shirt from a decade or so ago. Justice Jam was an event held by the Cobb County Bar Association. Bands largely comprised of attorneys who have maintained additional interests besides just practicing law, came together at The Strand to compete for first prize. It was always a fun, music packed night.
But it got me to thinking about the name of the event and the broad platform organizing it. Here were many, many attorneys coming together to enjoy a night of music under the flag of Justice. But does Justice mean the same thing to so many, very different attorneys?
For example, to me Justice is a two step process. First, you have a duty to discover the truth, or at least as close to it as you can get. Only by knowing the truth can you arrive at Justice. The second step is where Justice involves Judgment. (I am capitalizing these words on purpose.) Judgment is a judgment call. It involves your standards, your morals, your ethics, unfortunately your known and unknown. There is a lot to unpack there and I’ll start to unpack that on a later day.
According to the dictionary, Justice means the process or result of using laws to fairly judge cases, redress wrongs, and punish crimes. In that sense, the end goal is to fairly judge cases. But that end goal does not answer the question of what is the process to achieve that end goal. I say the process is first the discovery of Truth and then the application of Judgment. But what processes should attorneys use to facilitate that end, to arrive at Justice? Is that end goal even the duty of an attorney, who is only a part of the process, rather than only the ultimate goal of the processes themselves?
Under the Georgia Bar’s Rules of Professional Conduct,
- A lawyer is a representative of clients, an officer of the legal system and a citizen having special responsibility for the quality of justice.
- As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s legal affairs and reporting about them to the client or to others.
The Bar’s Rules of Professional Conduct makes it clear that a lawyer has a special responsibility for the quality of justice. For me, my process is first a pursuit of truth. What really happened? What is really going on here? Many if not most attorneys pursue justice by first pursuing truth. However, some attorneys act as though their job is to pursue their client’s objectives by almost any means available, regardless of whether or not it leads to truth or an honest or just outcome. They feel that it is up to the judge to sort out fact from fiction, truth from falsehood. They feel that it is up to the judge to apply judgment.
The conflict in the Rules comes in where “zealous advocacy” is concerned. The attorneys who perceive truth and judgment as irrelevant to their role seem to feel that whatever they are hired to do is the sufficient answer. The right result, justice, is neither their concern nor in their job description. That’s enough analysis for them. Again, they feel that it is up to the judge to sort it all out. The attorney is just one cog in the wheel, one element of the overall process. They aren’t responsible for the outcome.
The Georgia Bar Rules of Professional Conduct also state:
- 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 law, 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.
- The Bar’s Rules states it plainly, “respect for the law” and “a lawyer’s duty to uphold the legal process.” Still, there is no Rule of Professional Responsibility that truth and judgment are fundamental processes that underpin law or are integral to the legal process. The closest they seem to come is “consistent with requirements of honest dealing,” which is great for honesty but only applies to the attorney in their role as negotiator and does not directly assert any requirement that Truth must be a first step in achieving justice.
Laws change with the political tide. What was criminal yesterday may become legal today. What was usurious and predatory last year may become perfectly acceptable canabalism this year. We are largely left then, with decorum being the fundamental virtue to be required. But, as with all things law, it depends.
“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.”
Rectitude is defined in part as “moral integrity; righteousness.” That opens up a whole ‘nuther can of worms that can include Truth but can also include strong bias. One man’s moral integrity could be another man’s self-righteousness. We’ve seen enough of that throughout history.
So, regarding Truth, are we are left to our own devices if the Bar’s Rules do not seem to require its pursuit? Are we left with pleading into the void that Truth should be a virtue in law? The Bar’s Professional Responsibility Rules do not dictate that approach. In our system, is it truly is up to the Judge to sort out what processes to use to arrive at the goal of Justice?
We’ll start working through that in my next installment. It’s a great journey.
Michael Manely
