Second dilemma: professional duty vs. professional obligationobligation

Since we have asked the question of whether a judge happens to be, in a moral sense, in a situation similar to that of the trolley driver, one can ask another one:

whether they can also face a choice such as Heinz. As already mentioned, in jurisprudence, this dilemma is known primarily as the basis for distinguishing the ethics of justice and the ethics of care. The first consists in respecting general principles and universal values, the other concentrates on specific relationships, empathy and willingness to help. Heinz has to choose between these ethics

because the situation requires him either to act against the fundamental legal institutions due to concern for his wife’s life, or to respect these institutions at the price of watching her die. In discussions with lawyers about this dilemma, attention is quickly focused on whether he should be criminally responsible in the light of the applicable rules, to what extent mitigating circumstances should be taken into account, etc. More fundamental questions about whether there are moral obligations in one’s professional life, of such power as Heinz’s in relation to his wife, and whether caring for another person can put a judge or lawyer in a situation of moral dilemma about how to treat established and irrepressible institutions in a specific dramatic situation are less frequent.

Before we try to answer this question, it is worth quoting two statements of women studied by C. Gilligan, which seem to be helpful in understanding the essence of the problem. The first is Ruth, who:

Sees Heinz’s dilemma as a choice between selfishness and sacrifice. For Heinz to steal the drug, given the circumstances of his life, which she infers from his inability to pay two thousand dollars, he would have “to do something which is not in his best interest, in that he is going to get sent away, and that is a supreme sacrifice, a sacrifice which I would say a person truly in love might be willing to make.” However, not to steal the drug “would be selfish on his part. He would have to feel guilty about not allowing her a chance to live longer.” Heinz’s decision to steal is considered not in terms of the logical priority of life over property, which justifies its rightness, but rather in terms of the actual consequences that stealing would have for a man of limited means and little social power.⁵⁶

Therefore, it seems to be important to the ethics of care not only to focus on the relationship, but also to treat the obligation towards it as an important reason to act. The social context of the whole situation is also important.

Perhaps Heinz should violate the moral duty prohibiting him from stealing not only because his wife relies on him and he has a moral obligation to her. The latter is in some way strengthened by the difficult material and social situation of the couple struggling with the disease. Unable to rely on the community in which they live, they must rely more on each other. C. Gilligan writes about this in the following way:

Moral dilemmas are terrible in that they entail hurt. Ruth sees Heinz’s decision as “the result of anguish: Who am I hurting? Why do I have to hurt them?” The morality of Heinz’s theft is not in question, given the circumstances that necessitated it. What is at issue is his willingness to

56 Carol Gilligan, In a Different Voice. Psychological Theory and Women’s Development (Cambridge Mass. and London: Harvard University Press, 2003), p. 101.

substitute himself for his wife and become, in her stead, the victim of exploitation by a society which breeds and legitimizes the druggist’s irresponsibility and whose injustice is thus manifest in the very occurrence of the dilemma.⁵⁷

Therefore, no element of moral dilemma distinguished according to the analysis conducted in the previous chapter is questioned (infliction of evil and sense of guilt are mentioned here) but its social origins are exposed. It is the institutions that create such difficult choices as Heinz’s. He must do evil not only because he is morally obliged to help his wife and take care of her well-being, but because no one else is able to do it within the institution. This can, of course, form the basis for fundamental criticism of institutions as unjust. Since they themselves create situations that require violation of their basic principles, it means that they are poorly designed. However, this does not change the fact that there is a dramatic choice in the individual situation.

The choice between duties arising from institutions and the sense of moral obligation towards others is also visible in the story of the lawyer Hilary, another woman examined by C. Gilligan. Her moral beliefs evolved with age, but she always tried to maintain internal consistency. Initially, she tried to follow the principle of not doing evil to others. However, she quickly reached the conclusion that this was not really possible because one is often forced or even obliged to do so. For life is full of tensions and conflicts that cannot be resolved with such an obvious yet too simple principle. She was also unable to follow the principle of self-interest. The author describes one of Hilary’s professional experiences:

Deliberating whether or not to tell her opponent of the document that would help his client’s case, Hilary realized that the adversary system of justice impedes not only “the supposed search for truth” but also the expression of concern for the person on the other side. Choosing in the end to adhere to the system, in· part because of the vulnerability of her own professional position, she sees herself as having failed to live up to her standard of personal integrity as well as to her moral ideal of self-sacrifice.

Thus her description of herself contrasts both with her depiction of her husband as “a person of absolute integrity who would never do anything he didn’t feel was right” and with her view of her mother as “a very caring person” who is “selfless” in giving to others.⁵⁸

Therefore, acting in accordance with institutional models ruled out being guided by a  sense of obligation towards others. One can suspect that it also

57 Ibidem, p. 103.

58 Ibidem, p. 135.

gave rise to feelings of guilt or dirty hands, although this is not explicit in the passage. However, it should be assumed that the problem here is not only the impossibility of following one’s own beliefs because they and professional duty are mutually exclusive. The moral conflict in this situation is due to the impossibility of fulfilling a moral obligation to another person resulting from the fact that they do remain in a specific, albeit remote, social relationship. The author writes:

Though she has access, as a lawyer, to the language of rights and recognizes clearly the importance of self-determination and respect, the concept of rights remains in tension with an ethic of care. The continuing opposition of selfishness and responsibility, however, leaves her no way to reconcile the injunction to be true to herself with the ideal of responsibility in relationships.⁵⁹

One can of course raise doubts that in this case there is no symmetry of options because in fact any moral commitment to the trial opponent is too weak to balance the professional duties resulting from the role of the lawyer. This applies in particular to trials organised in adversarial way. This principle is the basis for the lawyer’s loyalty towards the client, and demands of them that they pursue that client’s interests, privileging them in relation to the interests of other people, and certainly requiring them to give it priority over the interests of the other party. There is also a lack of moral obligation in the sense of that which Heinz has in relation to his wife, or even a lawyer in relation to their own client.

A trial opponent does not treat the lawyer of the other party as someone they can trust, rely on and expect help from.

It can be argued that the moral obligation towards another person results from the very essence of interaction. For then, an ethical relation is always created in the first place. It has a  direct character in the sense that it is established between two entities that recognise this subjectivity. It is not mediated by institutions. Subjects do not meet as holders of specific social roles. To form ethical relations and create a moral commitment only a meeting is needed. It is the source of moral responsibility for another human being, which, however, is existential and not normative. Only such a relationship can be a source of ethics. In this view, therefore, this moral obligation is the source of the norms of conduct, including duties.⁶⁰ Without questioning the validity of this way of thinking, it should be noted that, however, this is a slightly different understanding of moral obligation than that used in the above considerations.

Until now, we have used it in the sense of a specific ought towards a particular

59 Ibidem, p. 136.

60 Kaczmarek, Tożsamość, pp. 132 et seq.

person, resulting primarily from one’s social role played in relation to them – being someone’s spouse, representing someone in court, or simply being a party to a contract. Institutions introduce diversity here, i.e. we no longer have the same moral existential obligation to feel responsible for people we meet and whose lives we may influence, but we do have a  moral normative obligation to treat certain people as distinguished. We have special moral obligations to them, not just general ones. Using the term moral obligation in this sense lets us ask whether the special nature of this ought may interfere with duties arising from the role that is at the same time the source of this obligation. This is very important in the case of professional roles.

It seems that such a conflict between professional duty (resulting from the requirements of institutions) and professional obligation is possible. Let us look at another example from the ethics of the judges to clarify this. On April 27, 2017, the Wrocław Court of Appeal passed a judgment,⁶¹ in which it dismissed the judgment of the District Court by acquitting the accused of committing the crimes they were charged with, namely deeds consisting of claiming influence in a state, self-governmental institution, an international or national organisation or in a foreign organisational unit with public resources, or convincing other persons of the existence of such influences, and undertaking mediation in order to settle the case in exchange for financial or personal or the promise of this (Art. 230 of the Penal Code), and leading another person to an unfavourable regulation in respect of their own or someone else’s property by means of misleading or exploiting a mistake or inability to properly understand the action taken in order to obtain financial gain (Art. 286 Penal Code). The accusation was the result of a special operation carried out by the Central Anti-Corruption Bureau (CBA) in 2007.

The main objections in the appeal case presented by the defence lawyer consisted in the fact that, in their opinion, the operation was carried out in violation of the provisions of the Act on the CBA. Not only were the conditions for initiating it not met, but also the actions of the person cooperating with this service were a  form of inciting the accused to commit a  crime. As a  consequence, inclusion of material thus gained in the evidence, and its recognition as the basis for making relevant findings of factual information originating from this operation, were in violation of the standard of a  fair criminal trial. The boundaries of the free assessment of the evidence collected in the case were also exceeded, in particular the materials from the CBA special operation and explanations of the defendants, which led to an inconsistent and internally contradictory admission that, on the one hand, these materials

61 Case No. II AKa 213/16.

came from illegal operational and reconnaissance activities and as such should not form the basis for determining relevant facts, and, at the same time, that in the absence of their unambiguous credibility, it is possible to use them as evidence, though ancillary only, in establishing the facts of the case. Incorrect assessment of evidence also consisted of the improper assessment of the degree of guilt attributable to the defendants, ignoring the duration and intensity of pressure exerted on them, resulting in an abnormal motivational situation in which the defendants, provoked to corruption only by their relations with those demanding their specific activity regarding an associate of the CBA, who is not an official of the service, accepted the method of solving the case suggested by this associate.

Indeed, the court of first instance expressed the opinion that there were no grounds to assume that the formal conditions for the implementation of the special operation according to the mentioned regulations were fulfilled, and in its opinion the testimony of the CBA’s collaborator, including classified evidence, must lead to the conclusion that there was no reliable information which could initiate activities related to operational control. The Court of Appeal shared this assessment of the evidence, and then defined the basic issue that had to be resolved as follows:

The essence of the problem in the case under review boils down to the following issue. The court of first instance assumed that (...) in relations with the accused, he was an inspirer of corrupt activities, initiated such actions towards the accused and incited them to such actions. The accused took the financial gain as a result of the provocation. It has already been indicated above that the District Court considered that the formal conditions for implementing the special operation were not met. In connection with the above, the problem arose whether the evidence thus obtained could be used against the accused, be the basis for factual findings and, as a consequence, be the basis of a conviction.

This issue therefore concerns the application of the “fruits of poisoned tree” doctrine. Despite various disputes pending in the jurisprudence of the criminal trial, it was not considered part of the Polish legal order at the time of deciding the case. It was introduced only by the Act of 27 September 2013,⁶² amending the act on the Code of Criminal Procedure and some other acts that came into force on 1 July 2015, establishing a new Art. 168a of the Code of Criminal Procedure (CCP) in the wording: “It is unacceptable to carry out and use the evidence obtained for the purposes of criminal proceedings by means of a prohibited act, referred to in art. 1 § 1 of the Criminal Code.”

62 Journal of Laws of 2013, item 1247.

Quickly, because of the Act of March 11, 2016 amending the act on the Code of Criminal Procedure and some other acts,⁶³ this provision was been given the following wording: “Evidence cannot be considered inadmissible only on the grounds that it was obtained in violation of the provisions of the proceedings or using a prohibited act referred to in Art. 1 § 1 of the Penal Code, unless the evidence was obtained in connection with the official’s performance of official duties as a result of murder, deliberate injury or deprivation of freedom.” This change meant, therefore, a quick end to the binding of the fruit of a poisoned tree doctrine in the Polish criminal trial. It was left in the law only to a reduced extent, limited to the most serious crimes.

Such a legal status naturally only complicated the task of the Court of Appeal.

For the legislator clearly first introduced the doctrine of the fruit of a poisoned tree, following the delineated philosophy of the criminal trial, and then – after a political change – they expressed the opposite will, based on another axiology.

In such a situation, the Court of Appeal had to conclude that:

The current wording of the provision allows the use of evidence obtained in violation of the provisions of the proceeding or by an offence (...) disqualifying only evidence obtained as a result of murder, deliberate injury or deprivation of freedom, and in the case of a public official disqualification occurs furthermore when they obtained evidence in violation of the provisions of the proceedings or by means of a prohibited act.

In the case of provocation, it was a co-worker and not an official of the CBA who gave testimony, therefore, the Court of Appeals also stated that:

It should be pointed out that this is a highly controversial solution (...) because it does not restrict the parties to the proceedings in their private gathering of evidence even by means of a prohibited act, except for evidence obtained as a result of murder, deliberate injury or deprivation of freedom, which as a result is an incentive to collecting evidence in violation of provisions not included in the above catalogue, which is closed.

In addition, it should be noted that a significant drawback of the discussed regulation is the weakening of the guarantees protecting the participants of the proceedings and other people from obtaining evidence in a way that infringes the protected goods, which involves the fulfillment of features of a prohibited act.

In this situation, the Court of Appeal refused to apply Art. 168a of the CCP in regard to the part which, in its opinion, is contrary to the Constitution of

63 Journal of Laws of 2016, item 437.

the Republic of Poland, in particular the protection of human dignity, the right to privacy and information autonomy. It also stated that evidence could be considered inadmissible if it was obtained in violation of the provisions of the proceedings, or by means of an offence, while violating the provisions of the Constitution of the Republic of Poland. It should be remarked that, according to the Court, the refusal to apply in part Art. 168a of the CCP is ultima ratio.

The court reached a  conclusion only after considering other possible forms of taking into account the constitutional standard in its resolution, and in particular the reconstruction of the norm from the statutory provisions and the Constitution of the Republic of Poland (co-application) and pro-constitutional interpretation. None of these possibilities could be applied due to the far-reaching incompatibility of the act with the Constitution of the Republic of Poland, and so the Court reached for its ultimate solution, i.e. refusal to apply the provision.

It should be noted that the ruling of the Court of Appeal is controversial not only because it aroused political emotions and public calls to institute disciplinary proceedings against the judges. A  court’s refusal to apply a  law is not a standard solution in the system of Polish law, or in any system in the

It should be noted that the ruling of the Court of Appeal is controversial not only because it aroused political emotions and public calls to institute disciplinary proceedings against the judges. A  court’s refusal to apply a  law is not a standard solution in the system of Polish law, or in any system in the