Rafael Boisset

Introduction

Throughout my time at law school in Peru, but especially during the first year, my Professors taught that seeking justice must be a constant ideal in the legal profession. Indeed, while I was a law student I thought that I would always strive for justice while practicing my profession as a lawyer.

I have been a transactional lawyer for almost five years. I have also been involved in several trials, both civil and criminal, as part of my work in a so called big law firm. I have been exposed to several situations in which my legal advice would not exactly be defined as ‘just’ or ‘fair’ by everyone. Those situations placed me in an uncomfortable position as I felt I was doing something wrong; I thought I was doing something unethical. I began questioning whether behaving ‘unfairly’ was the same as acting unethically. I concluded that it was not.

Justice

Justice is a very broad concept. We could go back to ancient definitions like those from Plato and Socrates, or we could look to Locke or Rousseau. These authors differ in their theories, but they all share a general view of fairness, equity or equivalency.

Ethics

Ethics is more related to the social behavior of what is wrong and what is right; what is socially acceptable. Ethics may vary from different customs and beliefs. Ethics can be easily be taught as the standards are norms of conduct selected and accepted by a group of persons. What is ethical in the U.S. may not be ethical in Peru, or in a more conservative society around the world.

The roles of lawyers

Lawyers can exercise different roles within their profession, such as legal advisors, either in the private or in the public fields, or as judges, among others. Lawyers who act as legal advisors can also play different roles such as in civil or criminal procedures, private transactions, tax planning, and others.

Both legal advisors and judges have different roles in society, but ethics is essential to the behavior of both. Consider though: can judges and legal advisors be unjust and unethical at the same time? Does the fact that a judge reached an unfair resolution to a controversy mean that the judge acted unethically? Has a legal advisor who defended his or her client’s interest in an unfair way acted unethically?

Justice and ethics

It is not my intention to create a debate about justice and ethics. My intention is to differentiate between both concepts as I believe being unjust is not necessarily unethical. An adviser should look for the result that best serves his client’s interest, which could be looking for justice, or looking for an unjust result (in terms of equivalency) and even tough keep being ethical. For instance, it is ethical for a lawyer to negotiate a settlement to a dispute where the settlement is so one-sided that the result could be characterized as very “unfair”, but the other party accepts the deal to avoid the cost of going to trial.

In the case of judges, the line is thinner. Judges have the goal of giving justice to a community by following a formal procedure which is applying the law. Laws are not always fair, and hence a judicial decision which applies a written law could be “unfair”. In that case, the judge will be acting ethically but will be delivering an “unfair” solution to a particular controversy.

Conclusion

I believe there are situations where lawyers, despite the role they are playing, could be acting unfairly but in an ethical way, and hence, such conduct should not be socially stigmatized.