Ethical Conundrums in Therapeutic Jurisprudence and Preventive Law:
A Call to Identify Issues
At the Third International Conference on Therapeutic Jurisprudence scheduled for June 7–9,
2006 in Perth, Australia, one or more panel sessions will explore the theme of “Ethical
Conundrums in Therapeutic Jurisprudence and Preventive Law.” The co-chairs for planning this
discussion stream, Professors Marjorie A. Silver, Edward A. Dauer and Thomas D. Barton,
would like to enlist your assistance in identifying issues to be addressed.
A variety of practices and institutional reforms have been urged over the past few years to
promote stronger psychological well-being and problem prevention in the legal system. New
ideas continue to be proposed for better lawyering, policing, judging and forensic psychology.
What has not kept pace is consideration of social and professional ethics about those initiatives.
Some issues have been raised, but remain largely undiscussed. Other issues have not yet been
clearly articulated. The Perth panels will explore current as well as prospective practices.
What issues of morality or professional responsibility have you thought about as your
institutional structures, professional roles, or personal attitudes have changed? As you imagine
further reforms, what ethical norms offer guidance or pose obstacles? Your ideas will inform the
panel discussions in Perth.
Please pass along your suggestions by November 30, 2005 to: email@example.com or one of the
other co-chairs. If you plan to attend the Perth meeting, please include that fact in your
communication–it will help us in nominating panel members. Even if you do not plan to be in
Perth, however, your ideas will be helpful as topics for discussion.
Here are some thoughts that occur to us, as samples.
Reconceiving Competence. Professor Silver has been working on this important topic: What
does the professional responsibility of competence mean for TJ lawyers? How might lawyer
competence be reconceived in light of changing ideas about the lawyer’s role and
Designing Procedures. Recent empirical research reveals that at least some legal claims are
pursued out of anger or a desire for vengeance. Medical malpractice issues, for example, may
persist in litigation because of a strong personal hurt accompanying the event. Such motives can
block the use of procedures that might help to resolve the immediate problem and prevent
problem recurrence. And yet the emotions may be authentic. Ethically, should we be attempting
to respond to needs of this kind? Should government tolerate institutions that validate the
“baser” emotions of its citizens? If so, within what limits, on what occasions, and with what
protections for those on the receiving end of the feelings?
Professional Follow-up. When is the professional responsibility of a lawyer toward a client
finished? If lawyering is conceived purely as transactions and formal representation in court,
perhaps the lawyer’s responsibility concludes when the deal closes or judgment is pronounced.
But where lawyers seek more therapeutic results with clients, as where the lawyer negotiates a
reduced prison term for a client by arranging a comprehensive medical and psychiatric
intervention, do lawyers have a further duty to evaluate the effectiveness of the therapy?
Physicians are not permitted to “abandon” patients without first assuring the patient access to an
alternative plan of care. Should TJ lawyers have similar ethical responsibilities?
The Judicial Role. In the adversarial system of justice, lawyers define the dispute through the
pleadings and largely control the flow of information to the court through presentation of
evidence. Where judges seek more therapeutic or preventive outcomes, to what extent may they
unilaterally expand the legal issues, or the social context in which those issues are considered, or
the scope of the remedy to be applied?
These ideas are just a beginning. We welcome your thoughts and hope to see you in Perth.