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A Philosophic Digression: "The Justice Factor"

A few months ago The New York Times reviewed the The Complete Works of Primo Levi (Nov. 29, 2015). Levi was a professional chemist. He was also holocaust survivor, author of Survival at Auschwitz. The review stated that the “core of Levi’s science . . . was its refusal of generalizations and theories that transcend the realities of particular things.” Levi believed: “You must not trust the almost-the-same. . . . The differences may be small but can lead to radically diverse results.” Levi stated: “What we commonly mean by the verb ‘to understand’ coincides with ‘to simplify.’ . . . The desire for simplification is justified; simplification itself is not always. It is a working hypothesis that is useful as long as it is recognized for what it is.”

Steven Pinker in his best seller, The Stuff of Thought, states the same concept: “Humans construct an understanding of the world that is very different from the analogue flow of sensation the world presents to them. They assemble these objects and events into propositions, which they take to be characterizations of real and possible worlds. The characterizations are highly schematic: they pick out some aspects of a situation and ignore others, . . . .”

Lawyers use the same process in legal reasoning. We analyze the fact pattern, sort the facts into the appropriate legal category either directly or by analogy, and then apply rules to the categories of facts. We often reason by “almost-the-same”. This is a useful working hypothesis, but we often don’t recognize it as just a hypothesis – especially when we apply the precepts of legal reasoning to professional ethical problems.

Sometimes the small differences between the “almost-the-same’s” should lead to radically diverse results. Because our legal reasoning is highly schematic, we are often unable to reach these diverse results. I suggest that in cases involving ethical issues, we should apply a “justice factor” to adjust the results to correct for “almost-the-same’s”.

The problem with applying a “justice factor” is that it requires making exceptions to a general rule on an ad hoc basis. The Law – as an institution – does not favor ad hoc decisions. The Law favors firm rules that are strictly followed, even if – at times - injustice may result. A current example is the controversy over strictly applying the Federal Sentencing Guidelines to those cases in which the resulting punishment is out of proportion to the crime. Many judges feel the need for discretion to adjust sentencing when the circumstances demand it.

Good examples of applying a “justice factor” in the area of professional conduct arise out the application of Rule 1.6 – confidentiality of client information. There have been several “buried body” stories in which criminal defense lawyers have learned the location of victim’s bodies but have not disclosed the information, even after the conviction and sentencing of their client and even though it would have brought solace to the victim’s family, because it was learned during the representation.

More difficult is the Chicago case of a person wrongfully convicted of murder and who spent 26 years in prison. Lawyers for another individual on trial for another crime were told by their client that he had, in fact, committed the murder; but he did not give informed consent for the attorneys to disclose the information. Not until the client died did the attorneys feel free to disclose the information and obtain the release of the wrongfully convicted man.

There should be some flexibility in the system that would give lawyers permission to do the right thing in the interests of justice. Perhaps a system like medieval equity, where a lawyer could approach some tribunal on a confidential basis to get an exception to the strict application of the rules. It would insert a justice factor into our system of professional conduct and give some recognition to the “almost the same.”