Tl;dr version. The so-called "ethics/law divide" is often discussed in the context of non-legal professions. Does such a divide exist in the practice of law or is it a contradiction?

The ethics of quite a number of professions acknowledge at least a theoretical possibility that breaking the law might be ethically justifiable or even necessary. The classical example is a physician practicing under an oppressive regime who is ordered to perform experimentation on political prisoners or assist in a genocide. Most medical ethicists would agree that the physician has a duty to refuse to participate regardless of whether such refusal results in civil or criminal liability attaching to the physician. An article from the perspective of medical practice is Where the law and the ethics conflict? from the joint AREC, UK Clinical Ethics Network Conference ‘Ethics in Common’. For a discussion of some potential practical examples of ethical/legal conflict and dilemmas in the practice of social work, see the article "When Ethics and the Law Collide" from Social Work Today.

At first glance, it seems that these ethical principles would not apply to the practice of law, since lawyers derive their professional competence to practice, even their reason for existence, directly from the law and the courts rather than practicing despite the presence of laws and courts potentially trying to steer them astray from the principles of their professions. That is, physicians, social workers, nurses, physical therapists, clinical psychologists, dentists, teachers, child care workers, etc. walk a fine line every day between upholding the ethical principles of their professions while at the same time remaining subject to the law and its own requirements. They have two "masters", so to speak. Lawyers have no master but the law.

Is there any precedent either way (in any jurisdiction or before any court) on whether there can or cannot possibly be an ethical/legal conflict or dilemma with respect to the practice of law? An example of such a conflict might look like:

I'm a lawyer admitted to the bar in Ruritania. A new Ruritanian statute (cite) requires all lawyers to affirmatively report to the police all clients "who have made anti-government statements or who are reasonably believed by the lawyer to have participated in an anti-government protest in the past three years" under penalty of imprisonment and fine of the lawyer, but the latest bulletin of the Standing Ethics Committee of the Bar Association of Ruritania asserts that complying with this law is unethical and that lawyers who comply will be disbarred regardless of whether the law is upheld as constitutional or not. What should I do? What can I do?

From another perspective, could there be a scenario where legal ethics permit or even require a lawyer to violate constitutional statutes, commit blatant crimes, disobey valid court orders, knowingly remain in contempt of court, disregard prevailing rules of court, insult or threaten a judge, or otherwise get "in trouble" with the law in the name of upholding legal ethics, or is adherence to the law above all else the sine qua non of legal ethics?

Bringing everything back to the beginning, do lawyers living and practicing under oppressive regimes have some ethical duty to help themselves or their clients disobey blatantly "wrong" laws? In other words, can the law itself be unethical enough that lawyers are not professionally obligated to follow it? Plenty of extreme or not-so-extreme hypotheticals can be considered. For example, suppose a law is passed banning gay people from receiving legal representation. You (a lawyer) have investigated this law and found no reason for it to be unconstitutional, invalid, or otherwise unenforceable, because the laws in your country just suck that way. Can you justify representing a gay person in violation of this law as your ethical duty as a lawyer who believes that access to counsel for everyone is a fundamental ethic of lawyering, or would such an action be a textbook example of unethical legal practice?

Just to be clear, this question is from the perspective of the theory and philosophy of law and legal practice rather than a question about any specific jurisdiction. If this has been formally addressed in any specific legal system or jurisdiction, an answer from the perspective is welcome. For example, "The Supreme Court of Canada specifically ruled on this in 1973, here's what they said....".

Also to be clear, this question is about organized professional ethics (e.g. as ruled upon by bar committees and discussed in legal studies journals) rather than personal or religious moral codes.


1 Answer 1


In General

In the U.S., the ethical rules contemplate circumstances in which a valid statute may authorize or require a lawyer to act in a manner contrary to the rules of professional ethics that generally apply to U.S. lawyers. But, the converse is not true. There are no circumstances under which the rules of ethics provide that violating the law is ethical. In particular, the rules of ethics for lawyers state that:

A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. 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 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.

A lawyer is required to vigorously represent their client's interests, but this is subject to the requirement that a lawyer not allow his or her services to be used to perpetrate a crime or a fraud.

Threats Of Criminal Or Administrative Action

The closest the rules of professional ethics come to something similar is the rule (which varies in detail from jurisdiction to jurisdiction that have this rule and is omitted from the ethical rules of some jurisdictions) is the prohibition as a matter of professional ethics, against threatening to bring criminal charges, or to seek ethical or administrative remedies, to gain advantage in a civil lawsuit. Colorado's rule on this issue is here, but this has been dropped from the Model Rules of Professional Conduct that the ABA recommends that all states adopt.

Dealing With Misconduct By An Entity Client

Another similar situation involves the protocols that a lawyer for a corporation or other entity that believes that the entity is acting or about to act unlawfully must follow. This basically involves trying to get the entity to change its conduct by all available means as opposed to going public as a whistle blower, and often forbids a lawyer from revealing his or her client's misconduct learned about in his or her capacity as an attorney for the entity (in cases involving misconduct not facilitated by the lawyer's own services).

Duties That Don't Apply To Lawyers

And, there are some duties that apply to the members of the general public, but do not apply to lawyers.

No Duty To Report Past Client Crimes

For example, there are certain crimes that, in some jurisdictions, there is a duty to report. But a lawyer does not have to report an already completed crime of a client that is disclosed to the lawyer in confidence. But this is really more a matter of the scope of the duty to report than it is of ethical rules authorizing a lawyer to violate the law.

No Litigation Related Defamation Liability

Another generally applicable law that does not apply to lawyers is the law of defamation in certain circumstances. Statements made by a lawyer in the course of representing a client in litigation or in anticipation of litigation are subject to a litigation privilege from defamation liability, although they could still be sanctioned by the court presiding over the case being litigated, or by the professional ethics authority for the jurisdiction, if the statements that would otherwise be actionable as defamatory violate ethical rules regarding public statements about litigation (also here).

This litigation privilege was invented to prevent ordinary lawsuits from triggering satellite litigation in parallel cases over statements made by lawyers in the course of litigation, instead consolidating that authority in two sets of public officials (the presiding judge in the case and the ethics enforcement authority) that are not under the direct control of the litigants. It serves a purpose similar to the rule prohibiting threats to seek criminal or administrative sanctions for the purpose of gaining advantage in a civil case.

Not All Violations Of The Law Are Ethical Violations

Also, there are violations of the law which are not violations of a lawyer's professional ethics - for example, failing to pay a personal credit card bill, or speeding, or parking illegally. But this is simply because there is not an ethical rule that expressly says "it is unethical to ever violate any law", not because there is an ethical rule that states something along the lines of the means justifies the ends in some circumstances.

But it is also the case that some violations of the law by an attorney unrelated to the practice of law itself are still considered ethical violations, for example, if it "reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." (Sometimes this is referred to as the "officer and a gentleman clause" in reference to a Uniform Coded of Military Justice prohibition that is similar in character).

Fiduciary Duties To Put A Client Above Oneself

Beyond the formal ethical rules for lawyers, lawyers are also fiduciaries for their clients. Fiduciaries are generally required to put their client's interests above their own.

So, for example, suppose that a client will lose his claim if a lawsuit is not filed by the statute of limitations, and the lawyer will violate the law by failing to file his tax return on time which is due with no further extensions on the same date as the statute of limitations, and the lawyer has the ability to do one or the other but not both. A lawyer's fiduciary duty to his client would probably require him to file the lawsuit for the client, even though this would mean that the lawyer would necessarily violate tax laws by not filing his own personal tax return on time.

But again, that is more like guidance in a trolley problem that arises for no fault of the lawyer's own, and less like a justification for breaking the law. The lawyer's failure to file his taxes on time is not justified or excused by his fiduciary duty to his client, it is simply a matter of choosing to avoid harm to client over avoiding harm to himself or herself when the conflict arises from the lawyer's arguably unethical procrastination (another professional ethical obligation of an attorney is a duty of diligence in work for clients, at least).

Situations When The Law Is Unclear

Another issue that comes up is that the law is often not perfectly clear. This is why we have lawyers at all. Legal ethics somewhat address the situation in which some official has declared that certain actions are illegal or are required, but the lawyer, on behalf of a client, defies the order because it is believed to be unlawful. There are some circumstances where it is permissible to do this (e.g. an unlawful order from a law enforcement officer), and there are other circumstances where it is not (e.g., an incorrectly decided preliminary injunction entered by a judge. that is being appealed). But in all cases, once the law has been determined as applied to a particular case finally and beyond further opportunities to dispute that decision, a lawyer must comply.

For example, the ethical rules for lawyers provide almost universally in the U.S. that a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."

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