Analysis of the Article The Ethics of Willful Ignorance by Rebecca Roiphe - Essay Example

Analysis of the Article The Ethics of Willful Ignorance by Rebecca Roiphe I.D. Number: Term and Year Name Analysis of the Article The Ethics of Willful Ignorance by Rebecca Roiphe Introduction This is an analytical paper on the scholarly article The Ethics of Willful Ignorance written by Rebecca Roiphe in 2011. Presently, Roiphe works as Associate Professor of Law in the New York Law School and has obtained her PhD in the University of Chicago in 2002. In her article, she puts focus on the issue of willful ignorance, particularly with reference to the lawyers’ professional conduct. Roiphe (2011) divides her article into four major parts. First, she discusses the background of her topic and focuses on the conceptual understanding of willful ignorance inside the present day legal framework. In the next section, she discusses Professor Luban’s point of view on attorney-client relationship with regard to willful ignorance. The title of the third section is “Attorney Liability in Criminal, Civil and SEC Enforcement Actions” (Roiphe, 2011, p. 215), where she throws light on the directives of American Bar Association (ABA). Finally, she writes on how the conflicts between the different bodies regulating lawyer conduct can be resolved. Throughout the paper, she dedicatedly explains her fixed theory that criticizes the doctrine of willful ignorance and calls for redefining a lawyer’s commitment to the community and the people in an essentially stricter way. Before delving into the main part of this analytical paper, willful ignorance must be concisely explained. According to Garvey (2009, p. 365), “The willful blindness (or willful ignorance) doctrine is a forfeiture rule based upon an actor’s omission: an actor who would otherwise have a failure-of-proof defense based on the fact that he did not know of a particular fact’s existence will forfeit that defense if he fails to act under the circumstances the willful blindness doctrine specifies.” The ethical implications of this sort of legal arrangement are really complicated, and a clear conceptual understanding of the topic is extremely important for the purpose of this paper. The Concept of Willful Ignorance The main focus of the article is the legal and technical conception of willful ignorance, particularly from the perspective of lawyers’ conduct. Willful ignorance, which is also referred to as Nelsonian Knowledge, contrived ignorance, conscious avoidance, ignorance of law, or willful blindness, is a term applied in law when a person or group seek to bypass criminal or civil liability towards a wrongful or illegal act by intentionally positioning themselves in a way that from such a position they would be unable to know the facts that would render them liable otherwise (Hellman, 2009; Luban, 1999). In such circumstances, the defendants argue that they did not have the knowledge of illegality of the wrong things they were doing at the time they did them. For example, a drug courier may say that he or she did not know the packages he or she transported contained drugs or transporting drugs is an illegal act altogether in that area. In such circumstances, the court may have to grant parole, acquaintance or conduct the proceedings for less severe charges like unintentional crime or criminal recklessness (Roiphe, 2011; Maine, 2000). In the case of lawyers, the dilemma around willful ignorance becomes more serious. For general public, law can be applied in a uniform manner under the jurisdiction concerned. However, for lawyers, there are three main issues. Firstly, it may not be so simple to understand or prove that the lawyer was assisting his or her client in defending himself or herself in a fraudulent way. Secondly, the conduct of the lawyers may be governed by different regulating bodies in different geographical areas or legal jurisdictions. Thirdly, the lawyers are equipped with the knowledge of law and expertise in legal practice personally. Hence, it is not clear from the viewpoint of legal philosophy that whether a lawyer can be held culpable for assisting his or her client in doing the crime (directly or indirectly) and putting up undue defense thereby. A wrongful and strategic manipulation from the side of the defense attorney may corrupt the whole case and trigger off a collective misconduct (Simon, 2005). Roiphe (2011) has analyzed this aspect of the issue of willful ignorance from two angles. First, she analyzes this topic in the criminal law framework with ample implications for the civil, and especially, corporate cases. Next, she explores the possibilities of enforcing ethical principals for regulating the professional conduct of the lawyers. In discussing the Foreign Corrupt Practices Act (FCPA), Friedman and Smithline (2012) point out: “The legislative history makes clear that while Congress meant to narrow the ‘knowing’ requirement, the legislators did not intend to limit the requirement to actual knowledge.” Now, the term actual knowledge complicates the concept of willful ignorance all the more. While willful ignorance generally covers criminal carelessness, the term actual knowledge specifically puts forward a narrower legal definition of the word knowledge. The philosophical aspects of legal studies appear to be somewhat vague in the context of willful ignorance and its holistic treatment. Perhaps, Roiphe (2011, p. 191) has presented the dilemma in a much lucid way: “Lawyer-philosophers have spent many pages considering the value of the willful ignorance doctrine. Is it fair to punish someone who didn’t know what he was doing, even if his ignorance was a product of his own mental gymnastics? Isn’t this the same as punishing a person for what he should have known – a negligence standard generally inapplicable in criminal law?” In general, if honesty, knowledge, communication and understanding are considered as imperative factors in developing a meaningful relationship between the client and the attorney, willful ignorance may amount to “equal culpability” (Husak and Callender, 1994, p. 29) for both the parties. Analysis The present day judiciary system does not acquit individuals from legal imperatives or obligations if they are found to have turned a blind eye towards the underlying facts. Yet, the lawyers invariably seek to be protected under the doctrine under the doctrine of willful ignorance. In her paper, Roiphe (2011) raises some very realistic questions regarding both the ethical and legal dimensions of this issue. Before analyzing her paper in more details, it will be wise to look into a significant reference she has used. In discussing the ethical aspects of willful ignorance, Roiphe (2011, p. 204) puts considerable stress on “Professor Luban and the Impact of the Attorney-Client Relationship.” In his article Contrived Ignorance, Luban (1999, p. 957) directly writes: “The sad fact is that honest lawyers sometimes have crooked clients.” Moreover, “At the very least, maintaining deniability might buy some time to figure out the nest move. The fact is that ignorance can be vital” (Luban, 1999, p. 957). However, Roiphe (2011) directly criticizes such an approach. In the subsequent subsections, we will discuss and analyze some most important issues the author has raised in her paper. When the Lawyer Assists in Client Fraud The most important question which addresses this issue is: Can the lawyer actually stop the client from wrongdoing? Of course, the lawyer can take certain preventive and investigative measures, but he or she cannot take the control of the client’s actions outright. However, in such circumstances, does the lawyer have any instrument to find out whether the client is telling lies or hiding facts? An honest assessment would probably reveal that a lawyer cannot automatically read his or her client’s mind and get informed about the pieces of information that are not being provided at all. Yet, the lawyers cannot avoid their responsibility towards the greater community and ethical dimensions of legal accountability must be acknowledged. Roiphe (2011) holds that if the lawyer becomes critically aware of examining the client’s statements and disclosures, he or she does not actually act as a regulator. The lawyer must not (and generally, does not) blindly admit to the version of events furnished by the clients when there is a high possibility of distorted statements or fraudulent practices. “The legal profession, however, adheres to the partisan approach even if it requires mental contortion to avoid knowledge that might impair zealous advocacy” (Roiphe, 2011, p. 223). This can lead to an ethical impairment of the lawyer’s conduct. Roiphe furnishes support for her view from the legal literature. She has cited Koniak (1992) and Zacherias and Green (2005) in this context. According to Koniak, the question that how a lawyer is assisting in client fraud has to be solved more clearly with precise definitions. Otherwise, the lawyer may behave in an opportunistic way due to the normative ambiguity left by the bar and the state authorities (Koniak, 1992). Moreover, stricter enforcement of ethical conduct can help the lawyers to handle client fraud. The lawyer should be stopped from supporting the client’s wrong actions and then intentionally turning a blind eye towards them during the trial (Zacherias and Green, 2005). American Bar Association’s Approach on the Definition of Knowledge American Bar Association, or ABA, has come forth with the Model Rule of Professional conduct (ABA Presidential Task Force, 2005). The bar has laid considerable stress on the ethical aspects of the lawyer’s conduct. According to the bar, the lawyer must directly communicate with the client. He or she should acquire the requisite knowledge about the case. Also, he or she should be truthful with the client. In general, the lawyer is advised to exhibit an honest conduct to form a constructive and strong attorney-client relationship. However, Roiphe (2011) finds this stand of ABA to be inter-contradictory. She argues that since ABA furnishes a much narrow definition of the term knowledge, the lawyer is easily acquitted from a number of significant liabilities. Despite the general disagreement on the extent of a lawyer’s liability, authorities and courts hold persons liable for material misstatement and/or misrepresentation under the legal framework, particularly when the case is handled under the securities laws. Careless disregard to the underlying facts in a case is culpable and when the attorney willingly deceives himself or herself about the client’s criminal behavior, he or she should be punished. But ABA provides certain pathways for the lawyer to escape prosecution by providing a narrow definition of knowledge and using the phrase actual knowledge. Knowledge of highly possible client fraud is not recognized as actual knowledge and the lawyer does not remain enough accountable anymore. FCPA remains a famous (or infamous) illustration of the effects of narrowing down the scope of knowledge standard by ABA. The anti-bribery provision within the Act emerged as a major problem area if a broader definition for knowledge were enforced. “When first enacted in 1977, the anti-bribery provision had a broader standard and applied if a defendant engaged in prohibited conduct ‘while knowing or having reason to know.’ Critics strongly opposed the standard as being too vague. For example, the late Senator John Heinz, at the time one of the biggest proponents of amending the FCPA, commented that if the statute were to be enforced ‘in that way’ with such a broad knowledge requirement, it would ‘totally cripple U.S. corporate activities in certain countries” (Friedman and Smithline, 2012). Hence, the knowledge standard is pruned to the phrase actual knowledge. In the framework of actual knowledge, anticipation of highly possible client fraud is ruled out. Intentional denial on the part of the lawyers regarding their knowledge of the client fraud or potential threat of braking law is not effectively sorted out. In this way, the doctrine of willful ignorance is made stronger. Ethical Effects on Attorney Client Relationship In her work, Roiphe (2011) has directly contradicted Luban’s (1999) stand if lawyers begin to pursue the clients to disclose their information and knowledge of underlying facts to the fullest, many disturbing realities may get uncovered. Lest the lawyer tries to become more persuasive or intimate, Luban (1999) has advocated that the ABA’s stand to grant the lawyer some flexibility under the doctrine of willful ignorance should be justified. In this way, attorney-client relationship can be maintained and bettered as well. However, Roiphe (2011) argues that such a lenient stand on the part of the ABA is self-contradictory owing to its own Model Rule of Professional Conduct for the lawyers (ABA Presidential Task Force, 2005). Roiphe’s argument appears to be very practical once again since the ABA declares that it wishes to enforce ethical conduct among the lawyers so that more transparency can be achieved and fraudulent activities can be prevented or diagnosed in proper time (ABA Presidential Task Force, 2005). Moreover, if the lawyers are denied intellectual and legal immunity by cancelling the doctrine of willful ignorance in the sphere of practicing legal professionals, the lawyers will be compelled to caution their clients in proper time. Such an arrangement can particularly help in preventing financial scandals and loss of national wealth. Conclusion Roiphe (2011) has earnestly sought to contradict those legal experts who hold that lawyers deserve to be granted a certain degree of flexibility when it comes to the issue of neglecting or overlooking client frauds. Although her opinion is very incisive, at certain times she appears to be too much argumentative. Moreover, despite the fact that her writing style is elegant and simple, she has used considerable number of technical terms in her paper which can create some trouble for a non specialist educated person. Yet the author deserves credit for being courageous. She has directly scrutinized the experts like Professor Luban, who is an eminent defender of the doctrine of willful ignorance and advocates that the lawyer cannot be held as directly responsible for his or her client’s fraud. Luban’s opinion supports the ABA’s approach as well. “Professor David Luban, a preeminent professional ethics scholars, defends the bar’s position with regard to willful ignorance by emphasizing how crucial this game of denial is to the integrity of the attorney client relationship. According to Luban, clients would grow to distrust lawyers if they pursued information harmful to the clients’ interest” (Roiphe, 2011, pp. 190-191). In her article, Roiphe has taken a direct and practical stand against this mentality. She has reasoned in an insightful and impressive way, and raised some very important issues, which should not be neglected or denied altogether. This is the most important contribution of the writer as she has ventured beyond the accepted conventions of legal writing. References ABA Presidential Task Force. (2005). ABA Presidential Task Force on the Attorney-Client Privilege, Report to the House of Delegates. Retrieved 9th April, 2012 from http://www.abanet.org/buslaw/attorneyclient/materials/hod/report.pdf. Friedman, P.T., & Smithline, R. (2012). Is “conscious avoidance” sufficient to establish knowledge under the FCPA? Business Law Today, February 2012, 1-3. Garvey, S. (2009). When should a mistake of fact excuse. Texas Tech. Law Review, 42, 362-382. Hellman, D. (2009). Willfully blind for good reason. Criminal Law and Philosophy, 3, 301-316. Husak, D., & Callender, C. (1994). Willful ignorance, knowledge, and the “Equal culpability” thesis: A study of the deeper significance of the principle of legality. Wisconsin Law Review, 1994, 29-36. Koniak, S. (1992). The law between the bar and the state. N.C.L. Review, 70, 1389-1392. Luban, D. (1999). Contrived ignorance. Georgetown Law Journal, 87, 957-962. Maine, J. (2000). The importance of ethics and morality in today’s legal world. Stetson Law Review, XXIX , 1073-1090. Roiphe, R. (2011). The ethics of willful ignorance. The Georgetown Journal of Legal Ethics, 24, 187-228. Simon, W. (2005). Wrongs of ignorance and ambiguity: Lawyer responsibility for collective misconduct. Yale Journal on Regulation, 22, 1-8. Zacherias, F., & Green, B. (2005). Reconceptualizing advocacy ethics. Georgetown Washington Law Review, 74, 1-59. Read More