The dilemma of professional ethics, the dispute between lawyers' commerciality and social justice
Time of issue: : 2010-05--24
Lawyer Huang Baoxue graduated from Shandong University of Economics in 1997. He once worked in a listed company and has been engaged in legal affairs and management for nearly ten years. He has extensive experience in the field of corporate legal affairs. He has acted for dozens of economic, civil and criminal cases in the past few years.
Professional areas: real estate business, corporate legal business, economic disputes, criminal defense, etc.
Practicing philosophy: Lawyers must not only be proficient in the law, but more importantly, solve problems.
Practicing creed: To be a lawyer, you must have a sense of justice, do not win cases that should not be won, and do not lose cases that should not be lost.
A lawyer had just won a major lawsuit, and he immediately telegraphed his client: "Justice has been won." His client called back immediately and eagerly: "Appeal immediately!" This is an old joke about lawyers. Although the joke is short, three baggages are revealed: First, it is not the righteous party that wins; second, the parties are most concerned about and only care about the result, regardless of justice or not, third, the interests of the parties are the justice pursued by the lawyers. The first two issues have nothing to do with lawyers or have little to do with lawyers. The third burden is the professional ethical dilemma about lawyers’ value orientation, also known as the dilemma of lawyers’ commerciality and social justice: when the interests of the parties conflict with social justice , Should lawyers maximize the interests of their clients, or should they pursue social justice as their responsibility?
Under an ideal structure, the two should be unified. "Lawyers should safeguard the legitimate rights and interests of the parties, safeguard the correct implementation of the law, and safeguard social fairness and justice." In reality, however, such conflicts are lurking in all cases. "Formal contradiction" is like the two sides of a coin. Two parties dispute their interests. When one party is on the side of lawfulness and justice, the other party must stand on the side of injustice. Lawyers can only choose to stand on the side of one party. Therefore, the interests of the parties are The struggle with social justice is bound to happen. This difference in position has also attracted two radically different positive and negative evaluations of lawyers from the society, which can be described as mixed.
1. The first thing that any profession solves is the problem of livelihood, except for the saint who likes to live a life of "one meal, one drink, in the back alleys, people are overwhelmed, and will never change their happiness". Lawyers generate income by providing legal services to their clients. They have a contractual and commercial relationship with the clients. Since they are contractual relationships, they should be honest and trustworthy. Since they are entrusted to the clients, they should be loyal to them and seek in the existing institutional framework. The way to maximize its benefits. The commercial nature of the lawyer profession inevitably requires that the value guide of the lawyer profession is to maximize the interests of the parties. Only by maximizing the interests of the clients can the commercial value of the lawyer profession be reflected. There is no doubt that lawyers aim to maximize the interests of the clients. "Lawyers must protect the legitimate interests of the parties" is just a beautiful assumption under the ideal of the law. Careful scrutiny hides a logical error in it. Just like the "innocent assumption" theory, since "the lawful judgment of the people's court is not allowed to anyone Determined to be guilty". So what is a legitimate interest must be defined by the final judicial decision, because the function of a lawyer is not to assist the court in discovering the truth of the case. When accepting an entrustment, the lawyer can only know the case through his own party. The function of the lawyer is to act as the spokesperson of one party, innately standing. From the standpoint of one's own party, he is not the ultimate judge. If what he strives for is not the maximization of the interests of the parties, but the legal rights or social justice, shouldn't he go on his behalf and confuse himself with the judges? How can we win the trust of the parties by putting social justice above the interests of the parties? Therefore, lawyers seek to maximize the interests of the parties. It is the basic social value and prerequisite for the existence of the lawyer profession.
2. Lawyers must maintain social fairness and justice. This social responsibility is a mission entrusted to lawyers by the law and a "red hat" that distinguishes the lawyer industry from other industries. Fairness and justice is the "backer" behind lawyers---the core value of the law. Lawyers use this to win the trust and respect of the public. Maintaining social fairness and justice is the expec