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Friday, March 01, 2019

Lawyers, counselors, and wrongdoing

Scott Greenfield of Simple Justice takes strong issue with Adam Benforado's criticism of the lawyers in "hiding abuse, silencing + further harming victims, and protecting abusers." Greenfield cannot understand how a law professor does not realize that "even members of the clergy accused of abuse are entitled to constitutional rights, including the right to effective assistance of counsel." To "decide beforehand that a defendant is unworthy of lawyers honoring their oath and respecting the constitutional rights of their clients . . . is to make the ends justify the means."

It seems to me that this is too narrow a view of the lawyer's role, particularly the lawyers for the Church, as opposed to the lawyers for any priests charged with a crime. Greenfield is right with respect to the lawyers representing priests charged with crimes and defending them in a criminal prosecution.

The scandal was the Church's failure to do stop the misconduct by its priests--moving them to different parishes, allowing them to continue working with children, threatening and manipulating would-be accusers. The scandal was the institution's internal management where it identified and recognized wrongdoing and not only did not stop or punish it, but affirmatively enabled it to continue. And the lawyers for the Church helped that. I read  Adam as criticizing those lawyers. One vision of the attorney role is as counselor, helping that institutional client do the "right" thing in response to that identified wrongdoing, rather than helping the institution to further enable it. If for no other reason than that when the wrongdoing is exposed--and it always is exposed--the fallout for the client will be even worse and more costly, so helping the client do the right thing also protects the client's interests.

Posted by Howard Wasserman on March 1, 2019 at 09:01 AM in Howard Wasserman, Law and Politics | Permalink


I don't think the two roles are as distinct as Howard and Adam fain they are, at least as far as the church is concerned. There is a valid distinction between criminal defense and corporate law where, for example, a civil corporation is concerned. Yet the Catholic Church is not merely a legal corporation in the civil sense; it sees itself as something much more than that.

So I see the premise of Adam's comments to be be that religious institutions should behave like non-religious institution, which seems to me both silly and wrong.

Posted by: James | Mar 5, 2019 2:53:02 PM

Just correcting it:

Timbs v.Indiana,not:"v. Indians" of course .....Apologizing

Posted by: El roam | Mar 1, 2019 11:20:23 AM

Just illustration to my comment, concerning punishment:

Hereby recent ruling of the Supreme court ( landmark ruling in fact ) in Timbs v. Indians, where it is held, that excessive fines and cruel punishments, are against fundamental due process principals, notwithstanding incorporation or not ( by states )So, found guilty. Yet, that doesn't imply cruel punishment of course.That is why one needs lawyer.




Posted by: El roam | Mar 1, 2019 10:54:27 AM

Horrific affair. One should know, not only in the US, but exposed so also in other states of the world, where priests have abused sexually children ( Australia, Germany and more ).

The issue of duty of lawyers, is really problematic. For, there is no public awareness to such important philosophical fundamental issues concerning the right conduct of proceedings in court of law . But, not only issues of quilt and innocence. Even if a person is found guilty in court of law, he is yet entitled for receiving not only fair treatment, but : reasonable punishment for example. The duty of one lawyer is extended beyond guilt and innocence. Sometimes the person is accused as co -perpetrator, but he was rather only assisting perpetrators. This yields different sentence. Sometimes, even if as perpetrator, and even complete one, the sentence could or should be reduced for other external reasons. Who would do it ?? This is crazy !!

It seems that that respectable professor of law mentioned, has confused the duty of the judge, with the duty of lawyers ( from both sides ). The philosophy of the adversary system, is very simple :

Each side, is doing it's best ( for digging evidences, and forming strategy ) while the duty of the Judge is to :

Conduct the trial, balancing the rights, and prevail finally. But :

Only, and if only, each side would do the best, then, justice is extracted and would reach the best that possibly can be achieved.


Posted by: El roam | Mar 1, 2019 10:45:42 AM

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