Civil Procedure raises interesting moral questions, however. A lawyer has a clear responsibility to advocate for his client to the best of his ability, but he also has a moral responsibility for the truth to be known and for issues to be decided on their merits.
If you are trying a case and you have the opportunity to make a procedural argument to win the case, without letting the facts be heard, what is your responsibility? It's clear that the adversarial system of law requires action on that front. However, the principles of justice and fairness require that cases be decided on the facts.
I guess it leads to the question of what procedure represents. Is procedure a morally binding set of laws? Does Rule 11 hold the same moral weight as Murder 1? Or are they, rather, a set of rules intended to help facilitate the process of law?
I'll take the former position. Law's moral weight comes from its ability to impose an orderly and functioning society, which has an intrinsic moral value. It follows that anything that makes the law work takes some of that moral certitude with it. The upshot of this is that a lawyer has both a legal and a moral responsbility to act in accordance with the rules and procedures set forth in whatever system of law he's practicing in. Part of the facts that apply to the principles of justice and fairness are the ability of the attorneys to subscribe to, and use, the rules.
This doesn't mean that lawyers should circumvent the rules in the interests of clients, or bend, break, or ignore the spirit of those rules, but simply that part of being a good advocate is knowing the rules by which you are to argue. If the best argument wins, that should include the concept of the argument most within the scope of the rules.
As in all of these issues, there is a question of justice. Should you punish someone because their advocate is not as skilled at following the rules? Doesn't that disadvantage people who can't afford expensive lawyers, or teams of lawyers? There is always an argument that exceptions must be made in the interests of justice, even if those exceptions fly in the face of the written rules.
Comments, as always, appreciated!
As you point out, the moral dilemma is often knowing that by following proper procedure, it will allow a person to go scott free, becasue something else somewhere along the line has not been done properly. Ethically and by oath your obligation is to provide the best representation of your client that you can. That is why defense attorneys don't want to know if their clients are guilty or not. Why public defending is often unenthusiastic. Why you don't go into crim law if that dilemma keeps you up at night. Take Conflicts.
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