The Ethics of Snitching

 Posted on October 27, 2007 in Uncategorized

I have written a couple of times about a lawyer taking the position that he will not help criminal defendants cooperate with the government in exchange for the possibility of lighter sentences. My contention is that a lawyer who feels that cooperating with the government in exchange for a possible sentence reduction is unethical should, if possible, not help clients do so.

I say "if possible" because some lawyers - public defenders and others who defend the indigent - have clients who can't go and hire someone else if they don't like a lawyer's scruples. When a client is compelled to accept a lawyer's representation, the lawyer can't choose to abstain from doing anything legal to help the client. The lawyer is compelled to help despite his scruples.

If snitching - cooperating with the government in exchange for freedom - were illegal, then a lawyer helping a client snitch would be violating the law (under a parties theory). If snitching is unethical, then a lawyer voluntarily helping a client snitch is violating his ethics.

Lawyers have written, saying "snitching is not unethical" or "I don't see why snitching is unethical." I think they may be looking in the wrong place for ethical guidance.

Ethics are principles of right and wrong that govern our behavior regardless of the sanction that attaches. Ethics don't depend on possible sanctions; we behave ethically not because we might otherwise be punished, but because we recognize ethical behavior as correct regardless of possible punishment.

Laws attach official sanctions to certain behavior. The Texas Disciplinary Rules of Professional Conduct (as well as disciplinary rules that govern other lawyers, for example) are laws - there are sanctions attached to lawyers' violations (for the Austinians among you, the "sovereign" is the State Bar).

Something can be illegal without being unethical, or unethical without being illegal. For example, possession of marijuana is illegal, but most people would agree that it is not unethical. Theft is illegal and, most people would say, unethical. Lying is unethical in many situations in which it is not illegal.

There are examples from lawyering as well. Mixing client funds and lawyer funds is not unethical, but it is illegal (according to the disciplinary rules). Revealing client confidences is both illegal and unethical. Having sex with clients is, most lawyers would agree, unethical but (in Texas) it is not illegal.

Ethical principles are highly personal. What I consider unethical, someone else might not. We can't go to the books to determine what is ethical and what is not; the statutes don't tell us, the caselaw doesn't tell us, and the disciplinary rules don't tell us. (We can be thankful for this, since the people who write the statutes, caselaw, and disciplinary rules are often ethically retarded.)

We can learn what is legal and what is not by looking in books. To learn what is ethical and what is not, we have to look within ourselves.