Term Paper on "Unethical Case of Business"

Term Paper 5 pages (1726 words) Sources: 5 Style: MLA

[EXCERPT] . . . .

Professional Ethics

Unethical Case of Business

No professionals are more maligned for being unethical than attorneys, yet attorneys are one of the few professions that have adopted and adhere to a strict code of professional ethics, the violation of which can result in the end of a career and other severe sanctions. In the United States, each state has its own rules of ethics for attorneys. However, the majority of estates have adopted rules that are similar to the American Bar Association's Model Rules of Professional Conduct. These rules outline affirmative duties that an attorney owes to a client, in addition to listing proscribed behavior.

The American Bar Association's (ABA) model rules break attorney conduct into several different subdivisions: (1) client-lawyer relationship; (2) the attorney's role as a counselor; (3) the attorney's role as an advocate; (4) how the attorney is to treat non-clients; (5) the duties of law firms; (6) attorneys in the community; (7) how attorneys may advertise; and (8) attorney conduct and its impact on the legal profession. Most of the rules are written in an affirmative manner.

While the Model Rules are very definitive about an attorney's duties, they are very ambiguous about the details of what constitutes certain behavior, such as competence. For example under Model Rule number 1.1, an attorney is required to be competent in his representation of a client. However, what the rule does is restrict an attorney from taking on a client or case if the attorney does not have the necessary skill to proceed in a particular matter, despite the facts that law degrees are generalized degrees and that attorneys who are admitted to practice in a jurisdiction are not limited in the scope of their representation. Therefore, an attorney has the responsibility of determining her own competence in a particular matter, and, if that determination is incorrect, can face severe consequences. In addition, attorneys have to be familiar with the rules in each individual jurisdiction, these are called local rules, and they can impose "civility standards or standards of conduct," which may require more of an attorney than state ethical rules. (Askew, p.855).

One of the trickiest things about attorney ethical rules is that an attorney's role is to be an advocate for a client, and a client's moral compass may differ dramatically from an attorney's own. As a result, attorneys are admonished to, "treat all clients with respect and dignity. Understand your client's position." (Askew, p.855). Furthermore, attorneys have to be prepared to make difficult decisions, "ethical dilemmas and conflicts arise everywhere and everyday- with clients, in settlement discussions, in mediations, and in talking with witnesses." (Askew, p.855).

While all attorneys face ethical conflicts, they can often find the resolution to their ethical dilemmas by looking at the best interests of a client. However, prosecutors do not have that same ethical guidepost; they are to be guided by the concept of justice, rather than being as adversarial as other attorneys. Under Model Rule 3.8 a prosecutor has special ethical responsibilities:

The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; - not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; [and] (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. (American Bar Association).

One of the most dramatic cases of attorney ethical violations is the recent attempt by Durham, North Carolina Assistant District Attorney Mike Nifong to prosecute several members of the Duke Lacrosse team for the rape of Crystal Gail Mangum. Unfortunately, the complaining witness lied about the events that served as the basis for the charges. From the beginning of the case, Nifong acted in an unethical manner, because he pursued a conviction, rather than justice. The issue was even more troubling because many rape victims are sex workers, like the complaining witness in the Duke case, and many rape victims do change their stories. However, when one examines the overwhelming lack of evidence against the indicted players, it becomes clear that a reasonable person with all of the available facts could not have continued to believe in the players' guilt. For example, the complainant could not identify her attackers, gave at least six conflicting accounts of the rape, and was not believed by the first responding police officer. (Neff). In Addition, Nifong "authorized a line-up ID by Mangum that only included members of the Duke Lacrosse team, an inherently prejudicial violation of accepted perpetrator identification procedures. He made statements to the press that vilified the Duke players and assumed their guilt, conduct specifically forbidden by the bar's ethics rules." (Marshall). Those elements alone would not have been sufficient to support ethics charges, but it appears that no one in the prosecution ever discussed the inconsistencies with Mangum, nor did they talk to the doctor who performed Mangum's rape kit exam. (Neff).

Had the physical evidence corroborated the victim's rape reports, it is unlikely that Nifong's early unethical behavior would have supported an ethics charge, despite the fact that Nifong made no attempt to ensure that the criminal complainant was credible. However, when the evidence became exculpatory towards the players, Nifong simply ignored it, hiding it from the defense, and lying about its existence in official documents and to the media. For example:

When DNA tests showed no trace of genetic material from the accused players, Nifong speculated in press interviews that this may have been because they used condoms, though he knew that Mangum had said that no condoms were used. That was a black letter ethics violation, an intentionally misleading and deceitful statement. Even worse was his decision to keep from the defense the fact that while no DNA from the accused players had been found on Mangum, DNA from multiple unknown sex partners were found. His deception violated both court and ethics rules and Nifong compounded his misconduct by lying about it, yet another clear ethics violation. Though the DNA results reached his office in April, he filed a statement in May saying that the prosecution "is not aware of any additional material or information which may be exculpatory in nature." (Marshall).

In hindsight, Nifong's behavior was clearly unethical. However, it is far too simplistic to dismiss Nifong as a power-hungry prosecutor with a disregard for justice and truth that borders on the evil. To do so is a tremendous mistake, because it ignores some of the realities that prosecutors face every day. First, the complaining witness was a stripper. Sex workers are disproportionately likely to be victims of sexual assaults, and their status as sex workers immediately makes them appear less credible than other sexual assault complainants. Therefore, conscientious prosecutors, police officers, and rape crises workers are trained to respond to initial sexual assault reports as if they are true and credible. In addition, many sexual assault victims change the details of what occurred during the attacks, oftentimes omitting the most humiliating and degrading aspects of an assault until they have become more comfortable with investigators. In fact, there is a strong psychological basis for the notion that many sexual assault victims may actually repress details of their assaults in order to cope with the after-effects. Therefore, despite the inconsistencies in Mangum's early reports, Nifong could have reasonably believed that she was being truthful about having been sexually assaulted. In fact, Nifong's belief was one that was initially shared by many of the players' fellow students and the Duke administration; lacrosse games were canceled during the criminal investigation and students protested the Duke administration's lack of a speedy response to the initial criminal complaints. (Timanus). Further complicating the case were the issues of race and class. Had Nifong ignored a poor black woman's complaint of gang rape by privileged white boys, he could have been setting himself and the county up for tremendous civil liability in a race discrimination lawsuit, and he would have been vilified by the press as a racist.

While it may be easy to understand Nifong's initial position, how he acted when he had to have known that the complainant was lying, is simply inexplicable. There is no scenario under which the continued prosecution of clearly innocent people is permissible. Nifong may have been personally conflicted because he invested so much effort into proving that the players were guilty, rather than examining the true facts of the case. However, despite the fact that Nifong was only one of many who initially believed the players were guilty, Nifong's official actions never complied with professional guidelines. Nifong directed the investigation, and failed to determine the credibility of the complaining witness. Instead of waiting… READ MORE

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