“Quis custodiet ipsos custodes?” Commonly translated as “Who watches the watchmen?” is the heart of the problem we face with in this country in regards to the rule of law. The law, in theory, is supposed to be about balance. This is why our version of Lady Justice is portrayed with scales and a blindfold. The concept is that Justice does not notice who you are, it merely judges the balance between claims.

For this to work, we must have judges and lawyers that adhere to the ideal of legal ethics. Ethics in the law can be summed up in in terms of loyalty; loyalty to the client, loyalty to the law and loyalty to the profession. This is very important as our system of law and justice has at its core the adversarial system.

This system is based on the idea that two advocates, arguing the facts before an impartial judge and or jury will be more likely to arrive at the truth of the matter than any other method. Given this zero sum game (one side wins, one side looses) there needs to be that loyalty to the law and the profession. Without it, there comes a win at any cost mentality, and then the scales of justice get a big thumb put on them.

Lawyers are human beings (okay lets keep the jokes in comments to minimum on that statement, eh?) they just as likely to have faults as anyone else in the population. Some will have really high integrity and some will have none at all. They will make personal judgments that are at odds with the requirements of their code of ethics.

Take the case of Charles Hood, from Texas. In 1990 he was convicted of murdering Tracie Wallace and was sentenced to death by Judge Verla Holland. The problem here is Judge Holland had had an extramarital affair with the prosecutors some three years before. That’s right, this judge had a romantic relationship with the prosecuting attorney, yet she did not recuse herself from hearing cases with him.

In today’s Washington Post, Yale law professor Bruce Ackerman outlines a very interesting proposal for achieving independent oversight of legal opinions issued by the Department of Justice’s Office of Legal Counsel. The proposal sounds very promising.