Friday, November 19, 2021

Policing The Lawyers

I ran accross an interesting article from 1998 in the Fordham Law Review titled, The Criminal Regulation of Lawyers, by Bruce A. Green. 

It is interesting because Green examines the often blurry border between criminal law and professional codes. Green concludes:

The criminal law has significance in regulating lawyers' professional conduct both because it provides an effective means of enforcing certain professional norms and because it establishes or influences the content of certain professional norms. The criminal law's regulatory role is most interesting, and potentially troubling, in situations where the criminal law points lawyers in one direction but other professional norms, such as those embodied in the lawyer codes, appear to point lawyers in the opposite direction. This problem has drawn attention from the American Law Institute, the criminal defense bar, and courts, among others, without anything approaching a consensus emerging. This Article has offered two modest, and by no means complete or completely satisfying, responses. First, courts should interpret open-textured criminal provisions to accommodate professional conduct that is consistent with a reasonable understanding of the professional norms, thus putting the burden on the legislature to manifest its intent to forbid such conduct. Second, prosecutors should exercise restraint in conducting criminal investigations and prosecutions of lawyers based on factually or legally ambiguous conduct.

I agree with Green but believe he vastly understates the problem. Lawyers and others who work in the legal system, especially family law, commit or cause to commit the majority of crimes in our society. Fraud has become just another tool lawyers use to win cases. And winning ceased to mean justice long ago.  Sadly the gap between criminal law and legal norms is a vast canyon filled with crime and corruption. Lawyers' rules tend to be well written but poorly followed.

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