THE UNETHICAL AND THE CRIMINAL

William J. Chriss, University of Texas

Abstract

Imagine a world in which everyone is at risk of prosecution but blissfully unaware of it until the police break down the door. This is the world that Franz Kafka foresaw in his 1925 book, The Trial, a disorienting tale of one man’s indictment for crimes that no one in authority could explain or even identify. It is my thesis here that lawyers have something to learn from Kafka’s cautionary tale. Although fortunately The Trial remains an exaggeration, it is not paranoia to tread carefully in a world of ever more proliferating regulation, especially regulation in the form of the criminal law. Attorney conduct that was once viewed as merely risking a colorable malpractice suit or a possible grievance can now land you in jail for twenty years. As we abide in this brave new world, lawyers would be well-advised to learn at least some of the new ways penal statutes have been, or might be, applied to them under the right, or perhaps better said, the wrong, circumstances.