CBA Record April_May 2016

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52 APRIL/MAY 2016
LEGAL ETHICS
BY JOHN LEVIN
A Philosophic Digression: “The Justice
Factor”
Afew months ago the New York
Times reviewed The CompleteWorks
of Primo Levi (Nov. 29, 2015). Levi
was a professional chemist. He was also a
holocaust survivor and 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.”
He 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 understand-
ing 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 characteriza-
tions are highly schematic: they pick
out some aspects of a situation and
ignore others …”
Lawyers use the same process in legal
reasoning. We analyze fact patterns, sort
the facts into appropriate legal categories
John Levin is the retired Assis-
tant General Counsel of GATX
Corporation and a member of
the CBARecord Editorial Board.
John Levin’s Ethics columns,
which are published in each
CBA Record, are now in-
dexed and available online.
For more, go to
legalethics/.
ETHICS QUESTIONS?
The CBA’s Professional Responsibility Commit-
tee can help. Submit hypothetical questions to
Loretta Wells, CBA Government Affairs Direc-
tor, by fax 312/554-2054 or e-mail lwells@
.
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–espe-
cially when we apply the precepts of legal
reasoning to professional ethical problems.
Sometimes the small differences
between the “almost-the-sames” should
lead to radically diverse results. Because
our legal reasoning is highly schematic,
we are often unable to reach such 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”.
However, 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 exam-
ple is the controversy over strictly applying
the Federal Sentencing Guidelines to 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–confi-
dentiality 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 victims’ 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 permis-
sion to do the right thing in the interests
of justice. A solution might be a system
like medieval equity, where a lawyer could
approach some tribunal on a confidential
basis to get an exception to strict applica-
tion of the rules. This approach would
insert a justice factor into our system of
professional conduct and give some rec-
ognition to the “almost the same.”