Michael asked:

Do you think the principle of zealous advocacy is morally justifiable for the practicing lawyer? This
principle assumes it is always good for people to be aided in exercising their legal rights and that
lawyers cannot presume to morally judge the law in deciding how to act. These assumptions do not
seem morally right to me. How could yo defend or attack such a principle using various ethical
theories?

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I think even a murderer has a right to defend himself because the law is punitive and we don't want to
punish an innocent man. So the law provides these rights reflecting our moral attitudes. In the eyes of
the law, we are innocent until proven guilty.

I don't see what is wrong with this 'zealous advocacy' principle. A lawyer is a professional person and
as such his moral judgements should not affect his actions on behalf of his client. He is doing a job
and has to uphold the principles of the law. The law keeps a sense of integrity. If a solicitor knows (ie
has evidence) that his client is guilty, the law is that he should not continue to defend him. And in
good conscience, he shouldn't.

The law is not moral in all its aspects and sometimes reflects aspects of culture that not everyone
approves of. The law is about protecting rights and freedoms determined by society. In the culture we
live in today people are defended in claims for compensation where there looks like an element of
greed. Also the law is failing to recognise that individuals are responsible for some things that happen
to them and sometimes blame is misplaced. Take the case of the woman who spilled hot coffee on
herself and successfully sued MacDonalds. Lawyers probably did morally judge in this case, but they
still have to behave professionally and do their best. If you wanted to exercise your legal rights,
wouldn't you expect the lawyer to want to help? On the hand, lawyers might be responsible for this
aspect of our culture. I'm inclined to believe it is lawyers who are responsible for encouraging greed
and law suits without merit by offering to take on cases on a no win no fee basis.

The main ethical theories which students have to know about are utilitarianism (J S Mill) and
deontological theory (Kant). Basically, the former states that the 'good' thing to do is that which will
maximise the well-being of greatest number. For the utilitarian, then, it could be suggested that
lawyers shouldn't judge the law since they would undermine what they should, professionally, be
upholding. You don't seem to have a problem with the law as such, just the zealous principle. On the
other hand, lawyers are only professionals who carry out the law. It is Judges and Parliament who
make the law, so if lawyers did make moral judgements it probably wouldn't have much effect, except
that professional status of lawyers would be lowered which is bad for lawyers and the public because
the public wants to rely on professional standards being met. Utilitarianism may or may not support
the principle. It is a difficult of weighing up the benefits for everyone of abandoning the zealous
advocacy principle.

For Kant (you can find more detail through the Philosophos search engine) a person should act on
what he sees to be his rational duty as a human being amongst other human beings. He should treat
others as he would want to be treated as a rational being. To behave as a rational being is to perform
one's duty rather than to act from inclination. The actual law, which isn't the 'Kantian law', ie
self-determined by and for all rational beings, but just law determined by Parliament and Judges
(whose judgement might be influenced by inclination) can be morally, ie rationally judged. Lawyers
should morally judge the law on rational grounds. But if they just don't like it, which is a matter of
inclination, that isn't even a moral judgement for Kant. The question is probably how much of the law
has a rational basis and whether it holds man in respect as a rational being.

But there are other ethical theories. You might must hold that morality is a matter of conscience and
then the lawyer shouldn't commit himself to the principle of zealous advocacy.

Rachel Browne