Achmad Shiva’ul Haq
Asjach
Scholar ID, Sinta ID, Scopus ID, WoS ID
The dilemma faced by a lawyer when
they learn through a client’s personal confession that the client is truly
guilty represents one of the classic issues in legal professional ethics. This
issue brings together two equally important obligations: the duty to maintain
the confidentiality of the lawyer–client relationship and the moral
responsibility to uphold justice. From the perspective of professional ethics,
this dilemma must be understood not only normatively but also through a
balanced moral and professional approach. This is important because the legal
profession is fundamentally an officium nobile (noble profession), which
is not only tasked with defending clients’ interests but also with safeguarding
the dignity of law and the justice system (Lubis, 2010).
Professionally, the relationship
between lawyer and client is based on the principle of trust (fiduciary
relationship). In modern legal systems, lawyers are obligated to maintain the
confidentiality of all information obtained from clients, including confessions
of criminal acts. This obligation forms part of the legal immunity of the legal
profession, which is protected by law and professional codes of ethics. In
Indonesia, this principle is reflected in Law of the Republic of Indonesia
Number 18 of 2003 concerning Advocates, which stipulates that advocates are
obliged to keep confidential all information obtained from clients due to their
professional relationship. In addition, the Indonesian Advocates’ Code of
Ethics also emphasizes that advocates must uphold professional secrecy in order
to maintain public trust in the legal profession.
The duty to maintain client
confidentiality is not only intended to protect the interests of individual
clients but also constitutes an essential element of human rights protection,
particularly the right to legal representation. In a rule-of-law state, every
person is entitled to legal assistance without fear that information disclosed
to their legal counsel will be revealed to third parties. Therefore, the
principle of confidentiality serves as a fundamental pillar of the professional
relationship between lawyer and client (Rahardjo, 2009).
From a professional ethical
standpoint, a lawyer is not positioned as a “moral judge” who determines a
person’s guilt or innocence. The primary duty of a lawyer is to ensure that the
legal process is conducted fairly, that the rights of suspects or defendants
are protected, and that the state does not act arbitrarily in exercising its
authority. Thus, even if a lawyer knows that the client is factually guilty,
the lawyer is still obliged to provide legal defense in accordance with
criminal procedure law and the principles of due process of law. This principle
is consistent with the presumption of innocence, whereby a person can only be
declared guilty through a final and binding court decision (Hamzah, 2008).
However, an ethical dilemma arises
when loyalty to the client potentially conflicts with the values of substantive
justice. From a moral perspective, an advocate is also part of the law
enforcement system, which aims to uphold truth and justice. Therefore,
professional ethics cannot be interpreted as a justification for assisting
criminal acts or obstructing legal proceedings. Advocates are strictly
prohibited from providing false statements, fabricating evidence, concealing
evidence, or instructing witnesses to lie in order to win a case. In other
words, the obligation to maintain client confidentiality must not be
transformed into active participation in criminal conduct or obstruction of
justice (Shidarta, 2006).
In analyzing this dilemma, several
ethical approaches may be applied. First is the deontological approach, which
emphasizes professional duty. This approach, rooted in the philosophy of
Immanuel Kant, holds that an action is morally right if it is performed based
on duty rather than its consequences. In the context of the legal profession,
the deontological approach positions the duty of client confidentiality as a
moral principle that must be upheld without exception. Any breach of
confidentiality is regarded as a betrayal of the integrity of the legal
profession and may undermine public trust in the legal aid system (Bertens,
2011).
Second is the utilitarian approach,
which assesses actions based on the greatest benefit to society. From this
perspective, disclosing client confidentiality might be considered to promote
justice and protect public interests, particularly when the criminal act has
broad societal impacts. However, if advocates are allowed to disclose client
confessions, public trust in the legal profession would collapse, as clients
would no longer feel safe speaking honestly to their legal counsel. As a
result, the function of advocates in providing legal assistance could be
undermined, rendering the justice system less effective (Rawls, 1999).
Third is virtue ethics, which places
the moral character of the advocate at the center of the issue. This approach
emphasizes integrity and practical wisdom in carrying out legal practice. An
advocate with integrity will not disclose client confidentiality, but at the
same time will not use such knowledge to manipulate the law dishonestly.
Ethical professional conduct is reflected in defense strategies that remain
within legal and moral boundaries without compromising personal integrity or
the dignity of the profession (Bertens, 2011).
In practice, the ethical solution to
this dilemma is not to disclose the client’s confession, but to maintain
confidentiality while continuing to provide professional and proportionate
legal defense. Advocates may adopt defense strategies focused on procedural
rights, evidentiary challenges, or encouraging lawful confession and
accountability without engaging in courtroom dishonesty. In this way, advocates
fulfill their defense function without becoming involved in actions that
violate legal and ethical standards.
In certain circumstances, if an
advocate feels morally unable to continue representing a client because it
conflicts with their conscience, they may withdraw from the case provided that
such withdrawal does not prejudice the client’s legal rights. This step may be
viewed as an ethical compromise between professional loyalty and personal moral
integrity. However, an advocate’s withdrawal must not be carried out
arbitrarily, as it may interfere with the client’s right to obtain proper legal
representation.
Ultimately, this dilemma demonstrates
that the ethics of the legal profession are not solely concerned with
compliance with written rules, but also involve balancing professional loyalty,
moral integrity, and responsibility toward the justice system. An ideal
advocate is not a defender of falsehoods, but rather a guardian of due process
of law, ensuring that justice is upheld through proper legal mechanisms. In
this context, professional ethics serve as the fundamental foundation that
keeps the legal profession within the boundaries of honor, honesty, and social
responsibility toward society.
References
Bertens, K. (2011). Etika.
Gramedia Pustaka Utama.
Hamzah, A. (2008). Hukum acara
pidana Indonesia. Sinar Grafika.
Lubis, S. M. (2010). Etika profesi
hukum. Sinar Grafika.
Rahardjo, S. (2009). Penegakan
hukum: Suatu tinjauan sosiologis. Genta Publishing.
Rawls, J. (1999). A theory of
justice. Harvard University Press.
Shidarta. (2006). Moralitas
profesi hukum: Suatu tawaran kerangka berpikir. Refika Aditama.
Law of the Republic of Indonesia
Number 18 of 2003 concerning Advocates.
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