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Ethics

: Legal Ethics Forum

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Yesterday in the NYT Nicholas Kristof had an article about a nun who was ex-communicated because she participated in a panel that permitted an abortion at 11 weeks gestation in order to save the life of the mother. A number of things struck me about the article, but one was about the implicit and conflicting conceptions of how the ethics of conduct should be determined put forward by the Church on the one hand, and by Kristof on the other. In the church's conception, there is a rule that governs conduct - not participating in the procurement of an abortion - and any behaviour inconsistent with that rule is properly judged to be unethical. In Kristof's conception, ethical behaviour depends on the proper application of the rule in context; where the application of the rule would violate morality, all things considered, then the ethical decision is to ignore the rule.

My question is this: which conception of ethics is most prevalent within legal ethics? And can one ever distinguish between different theories of legal ethics based on the extent to which they view rules as determinative of whether conduct is ethical, and the extent to which they view "decisions in context" as determinative of whether conduct is ethical?

In my (tentative, and subject to change) view it is likely that some theories tend to be more rule orientated, and others tend to be more decision in context orientated. For example, I think the perspective of David Luban, or of Bill Simon, would tend to orientate more towards decision in context than towards the application of a rule across circumstances. On the other hand, I think people like Brad Wendel, who argue for fidelity to law, might be perceived as more rule orientated and less towards decision-in-context.

I'm not suggesting that that is entirely the case - I'm not lining Brad up here with the Catholic church's view, or suggesting that David and Bill don't see rules of conduct as having relevance to ethical decision-making - but just that there might be a general theoretical orientation one way or another that distinguishes the theories in some way.

Further, I think there are some rules in legal ethics that we tend to perceive as more rule driven and others that we tend to view as more decision in context driven. For example, I think we tend to view confidentiality rules as relatively inviolable, so that in a case like Alton Logan the answer is non-disclosure, even though in its own specific context that decision can seem ethically perverse.

On what basis do we make that distinction? I think there is an initial debate to be had, on whether ethics is best orientated towards rules or towards decision-in-context, that can have implications down the line on how one approaches particular issues.

On a more personal note, I think I am perhaps troubled by this issue because I often tend towards rules as important for governing ethical conduct in lawyers, but I also feel like Kristof has the better of the argument (although that might simply reflect my underlying disagreement with the church's rule).

Full post as published by Legal Ethics Forum on May 28, 2010 (boomark / email).