CBA Record

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/.

BY JOHN LEVIN A Philosophic Digression: “The Justice Factor” A few months ago the New York Times reviewed The CompleteWorks of Primo Levi (Nov. 29, 2015). Levi

ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit- tee can help. Submit hypothetical questions to Loretta Wells, CBA Government Affairs Direc- tor, by fax 312/554-2054 or e-mail lwells@ chicagobar.org. More difficult is the Chicago case of a person wrongfully convicted of murder and who spent 26 years in prison. Lawyers for another individual on trial for another crime were told by their client that he had, in fact, committed the murder; but he did not give informed consent for the attorneys to disclose the information. Not until the client died did the attorneys feel free to disclose the information and obtain the release of the wrongfully convicted man. There should be some flexibility in the system that would give lawyers permis- sion to do the right thing in the interests of justice. A solution might be a system like medieval equity, where a lawyer could approach some tribunal on a confidential basis to get an exception to strict applica- tion of the rules. This approach would insert a justice factor into our system of professional conduct and give some rec- ognition to the “almost the same.”

either directly or by analogy, and then apply rules to the categories of facts. We often reason by “almost-the-same.” This is a useful working hypothesis, but we often don’t recognize it as just a hypothesis–espe- cially when we apply the precepts of legal reasoning to professional ethical problems. Sometimes the small differences between the “almost-the-sames” should lead to radically diverse results. Because our legal reasoning is highly schematic, we are often unable to reach such diverse results. I suggest that in cases involving ethical issues, we should apply a “justice factor” to adjust the results to correct for “almost-the-same’s”. However, the problem with applying a “justice factor” is that it requires making exceptions to a general rule on an ad hoc basis. The Law–as an institution–does not favor ad hoc decisions. The Law favors firm rules that are strictly followed, even if–at times–injustice may result. A current exam- ple is the controversy over strictly applying the Federal Sentencing Guidelines to cases in which the resulting punishment is out of proportion to the crime. Many judges feel the need for discretion to adjust sentencing when the circumstances demand it. Good examples of applying a “justice factor” in the area of professional conduct arise out the application of Rule 1.6–confi- dentiality of client information. There have been several “buried body” stories in which criminal defense lawyers have learned the location of victim’s bodies but have not disclosed the information, even after the conviction and sentencing of their client and even though it would have brought solace to the victims’ family, because it was learned during the representation.

was a professional chemist. He was also a holocaust survivor and author of Survival at Auschwitz . The review stated that the “core of Levi’s science…was its refusal of generalizations and theories that transcend the realities of particular things.” Levi believed: “You must not trust the almost- the-same…. The differences may be small but can lead to radically diverse results.” He stated: “What we commonly mean by the verb ‘to understand’ coincides with ‘to simplify.’…The desire for simplification is justified; simplification itself is not always. It is a working hypothesis that is useful as long as it is recognized for what it is.” Steven Pinker, in his best seller The Stuff of Thought, states the same concept: “Humans construct an understand- ing of the world that is very different from the analogue flow of sensation the world presents to them. They assemble these objects and events into propositions, which they take to be characterizations of real and possible worlds. The characteriza- tions are highly schematic: they pick out some aspects of a situation and ignore others …” Lawyers use the same process in legal reasoning. We analyze fact patterns, sort the facts into appropriate legal categories John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

52 APRIL/MAY 2016