Practical Moral Philosophy for Lawyers

If we are to engage in moral discourse in the law school classroom, whether it be in a course called Professional Responsiblity (or Legal Ethics) or elsewhere, we must confront the barriers that students see as impeding the discussion and conversation. Students assume that they bring their ethics with them to law school, that ethics cannot be taught, that when a teacher tries to teach ethics they are "preaching" or trying to indoctrinate them, and that if they become "ethical" that they will undermine their chances at becoming successful lawyers. These concerns and fears are actively promoted by other aspects of the students legal education and can never be wholly eradicated by the efforts of one teacher and one course but they can be adddressed. While there are many teacher colleagues who promote, some consciously and intentionally, and some unthinkingly, the very problem that moral discourse confronts--that lawyers live in what Richard Wasserstrom so aptly called a "simplify amoral universe"--there are also colleagues who teach students to temper their unreflective zeal for the adversarial ethic with concerns for fairness and justice. Some teachers believe and teach that a good lawyer is first and foremost a person of virtue, a person of character. But there are serious obstacles to undertaking inquiry into the moral character that lawyers take on in their zealous pursuit of client interests and it is these obstacles that must be addressed in the conversation ethics.

In focusing attention on the obstacles to moral discourse we are being honest with our students about what is happening in the classroom (moral discourse is not easy), in legal education (there is disagreement about the moral role of lawyers in oursociety), and in our culture (moral relativism is rampant and makes moral discourse difficult, if not impossible).

Students asked to explore the moral dimension of lawyering and to engage in moral discourse help us see there there are real obstacles that lie before us. I draw here on student writings (Spring, 1999) that explore these obstacles:

The Negative Perception of Lawyer Held by the Public

A surprising number of students argue that the negative public perception of lawyers posed a serious obstacle to moral discourse. The following excerpts were devoted to the negative perception problem:

"[T]he lawyer stereotype is an obstacle that we will have to face.... Most of society sees lawyers as scum.... However, society also sees lawyers as successful, in the monetary...sense.... What we are is successful scum. So, the logic goes, in order to be 'successful' in our legal careers, we must behave like scum. Whether we want to admit it or not, that is what most of us think coming into law school."

"Probably, the biggest obstacle we face is the public view. Generally, people view lawyers as unmoral or unethical. There is certainly some basis for this view.... The unethical lawyer is not a myth. They exist--they're out there. What many people fail to talk about, though, is that there are unethical people in nearly every profession. I have certainly known unethical accountants/CPAs, doctors, teachers, realtors, bankers and other professional people.... I believe that unmoral or unethical behavior or character is not rampant in the legal field, nor is it the single profession infested. However, lawyers in particular have gotten the bad rap for centuries -- 'First, we kill all the lawyers.' (Shakespeare, Henry__ (I can't recall which one.)"

"The primary problem that we face in dealing with moral problems as lawyers is that the public has an overall distaste for lawyers. More than a distaste, the public, or at least some of its members believe that lawyers have no morals. This perception may be caused by the increased advertising of personal injury lawyers on television. It may also be caused by the increase in the number of law suits filed each year. The increasing number of extremely sensational [law] suits that are heavily covered by the mainstream media also may effect the public's perception of lawyers. Another important factor may be that the public either does not understand or rather does not appreciate the role of lawyers in society. For example, a recent article in Parade Magazine, which comes as part of the Sunday paper, asked the question of whether or not private lawyers should defend criminals that they know are guilty. An overwhelming majority of the respondents thought that lawyers should not defend the criminals. Of the minority that thought lawyers should defend these people, most were lawyers. The point is that most lay people do not appreciate the role that lawyers play in safeguarding the freedoms of the common citizen."

"Lawyers are seen by the community as immoral...liars, cheats, swindlers...."

The problem we face, is "the light in which lawyers are held in our society...."

"Does morality have any place in the lives of modern lawyers? Certainly the current stereotype of lawyer as shark (leech, bloodsucker, vulture..take your pick) does not leave much room for morality."

"[L]aw school and mass media images of what it takes to be a good lawyer means that you have to be an aggressive bastard. Good lawyers are cut throat and tough. To question this behavior or to present alternatives is often interpreted as being weak."

The legal profession is indeed plagued by negative perceptions as these comments suggest. I am, however, confused as to how this perception, and our desire that it be otherwise, constitutes an obstacle to our own efforts to "talk ethics." Indeed, one might argue, that the perception rather than being a burden should be seen as an impetus to carry on such a dialogue.

The only obstacle to moral discourse, I see lurking in the public's perception of lawyers is our defensiveness. For example, one student argues, that "[t]he point is that most lay people do not appreciate the role that lawyers play in safeguarding the freedoms of the common citizen." Lawyers may indeed get too little praise for their "safeguarding" of our freedoms, but this misses the point--our deserved praise cannot obliterate the failure of a significant number of lawyers to live up to the ideals the public and the profession hold out for lawyers.

"The very discussion of legal ethics seems to bother many American lawyers. They view a challenge to their ethics as equivalent to a challenge to their honesty and believe that, in the final analysis, ethical judgments involve highly personal, even semi-religious decisions as to what is right and wrong." Thomas Morgan, The Evolving concept of Professional Responsibility, 90 Harv. L. Rev. 702 (1977)

For an informative essay on the "popular" view of lawyers, see Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 75 Cal. L. Rev. 379 (1987)

Ordinary Morality and Professional Morality

We must deal with the persistent notion that it is possible to hold one self out as a moral person and practice law in ways that the general public (and many fellow lawyers) hold in disdain. Moral philosophers and legal scholars have addressed this problem as one in which we attempt to live in two moral realms, simultaneously, one in which we subscribe to what might be called "ordinary morality" and the second realm, the realm in which we work as lawyers, where we hold to a "professional morality." We view the two realms as separate, in a psychological sense we compartmentalize our worlds (of thought, sentiment, emotion and feeling).

Students identify this obstacle:

"The majority of lawyers maintain two separate identities for their personal and professional life."

"[T]he basic issue is to what level a lawyer is willing to exercise his or her morals while representing a client."

"Our first obstacle is compartmentalization. This course cannot just be about our ethics as lawyers; it must be about our ethics as human beings. Too many people in our society think that it is possible to separate what they do from who they are and vice versa. I do not believe that is the way that life works.... Our 'professional ethics' and our 'personal ethics' need to match up; otherwise we lead ourselves down the path of inconsistency."

"All lawyers carry personal morals and beliefs into their practice of law. The problem associated with the beliefs lawyers carry into their practice relates to the separation of those beliefs from the law."

"Lawyers are also faced with the question of whether their morals should ever be involved. After all, a lawyer's duty is to serve the client. Maybe the lawyer should follow the requests of the client and put his or her own moral beliefs aside. Considering that it is only a 'job,' the lawyer could separate job demands from personal beliefs. Should a lawyer leave his morals at the door? Some would say that lawyers already do. Maybe the answer is that most people who become lawyers are naturally devoid of moral beliefs and seek out the legal profession because of this deficiency. Another possibility could be great lawyers do not have morals therefore all lawyers are striving to achieve such perfection. Although these thoughts might be true for some people in the legal profession, overall it depends on the person. Some lawyers may be able to separate business and personal, others may not. The obstacle is in knowing whether a lawyer's moral beliefs should interfere or influence the quality of representation the client receives."

This writer goes on to say: "I personally feel that each lawyer must set boundaries for himself or herself and stand by that decision. Every one of us needs to know how far to go in any given situation. Granted there are gray areas in life, but it is in these areas where a lawyer must look inside of himself or herself for the answers. The client deserves the best possible representation. Therefore it is my opinion that when a lawyer feels that his or her own moral beliefs may be compromised in a given case, then the client should be directed to a new attorney. I have strong moral beliefs which I do not compromise now nor do I plan to in the future. Each one of us has these personal boundaries and therefore we each face different obstacles given the situations in which we are placed. A lawyer must make his or her own choices in accordance with personal moral beliefs. If such choices negatively affect the client, there are other attorneys available who may not share the same moral stance."

"Another hurdle is an ability to separate the community standards from your own and then following the community standards. This will require a great deal of practice and stretching of moral muscles."

"A final source of moral guidance for lawyers could be the personal moral code of each attorney. Every attorney has some sense of personal morality, whether it have a religious or secular foundation. Is the moral lawyer one who consistently applies her own morality to each decision? The problem with such a focus is that it makes the subject so personal as to be of no help in a general discussion, particularly fit the goal is to determine some guiding moral principles."

"In any discussion of legal morality, a distinction must be made between moral acts and moral actors, as the two are not always the same. Moral actors would be those attorneys who consistently act in a moral way (however that is defined). They make moral acts on a regular basis. It is possible, however, that moral actors could make seemingly immoral acts, and vice versa. For example, a vicious cross examination of a crime victim may be an immoral act, but the most moral of defense attorneys would recognize that sometimes such an act is necessary to adequately represent their clients. On the other hand, an immoral civil defense lawyer, who typically employs tactics of delay and evasion can make a perfectly moral defense of a client who is in the right. Any discussion of morality in the legal profession must recognize the distinction, and focus on moral acts."

"Perhaps the biggest obstacle to discussions about ethics and lawyering is the theory of advocacy ethics. This theory holds that...it is more moral for an advocate (i.e. lawyer) to zealously further his or her clients' agenda regardless of any moral conflict between the advocate's personal moral beliefs and the clients' agenda than to place in a position of primacy the advocate's own moral views. In other words, a lawyer should zealously represent his client, regardless of [the] adverse results that may follow. This theory is an impediment to moral discussion in that a strong belief in this view would make any further moral discussion meaningless.... Hence, a strong advocate of the advocacy theory would find no meaning in pursuing discourse about morals in lawyering because any attempt to do so would be pointless. Even if one only has a moderate believe in the advocate system, the same result [may] follow since there is [an] underlying assumption that an advocate is 'insulated' from...incorrect moral decision[s]. Since the advocate is but a mouth-piece or a hired-gun of the client, the advocate can face no moral dilemma nor make an improper moral decision, and thus,...ethical principles (other than the advocacy theory) is meaningless...."

"[A] lay person (such as, members of my own family) may view Johnny Cochran as a[n] immoral charlatan who uses his skills to set killers free. On the other hand, a lawyer may view Johnny Cochran as an admirable, highly-skilled, craftsman. As I have progressed through law school, I have come to view the second statement as the more thoughtful and accurate conclusion. But, I realize in doing that I have moved from the broad question of 'What is Right?' to a more microcosmic, 'What is Right for the Client.'

"I am certain that at some point in my career I will be asked, by a non-lawyer, how I can represent criminals, sue people, profit from others misfortune...and maintain a sense of morality. I, of course, will be stunned by his ignorance and will patiently explain to him my duty as a lawyer to zealously represent my client (which I learned in Professional Responsibility class) and the 'system's' vital need for my work. In doing this, I wonder if I will have shifted the perspective of morality from a 'layman's view' to a 'lawyer's view.' I think the toughest obstacles in discussing morality in terms of the practice of law would be to discern how this disparity of views exists, why it exists, and whether it should exist."

Identifying the obstacle is one thing, attempting to address quite another. There are, of course, situations in which compartmentalization is an important psychological defense, a strategy necessary to do our work. [E.g., consider President Clinton's efforts, at least publicly, to present himself as having compartmentalized the work of the Presidency and the efforts of the House of Representatives to impeach him. How could the President continue to do his work, as a majority of the American people wish him to continue, if he did not compartmentalize?] While, compartmentalization is a complex psychological and social phenomenon, it is an extremely dangerous one.

"Any scholar immersed in the details of an intricate problem will tell you that its richness cannot be abstracted as a dichotomy, a conflict between two opposing interpretations. Yet, for reasons that I do not begin to understand, the human mind loves to dichotomize.... I used to rail against these simplifications, but now feel that another strategy for pluralism might be more successful. I despair of persuading people to drop the familiar and comforting tactic of dichotomy. Perhaps, instead, we might expand the framework of debates by seeking other dichotomies more appropriate than, or simply different from, the conventional divisions.... The problem is not so much that we are driven to dichotomy, but that we impose incorrect or misleading divisions by two upon the world's complexity. The inadequacy of some dichotomies rests upon their anachronism." Stephen Gould, Time's Arrow, Time's Cycle: Myth and Metaphor in the Discovery of Geological Time 8 (1987)

The general proposition can be stated in the form of a question: How can we talk about the morals of lawyers, if we define morals in different ways, indeed, if each of us perceives morals in a subjective way. If, indeed, we all have our own morals, then it seems rather futile, if not foolish, to try to talk about the moral dimension of lawyering. This sense that we each have our own morals is seems, at times, to be grounded in the fact that even the sources of our ethical beliefs are not commonly shared. We are left, in this view, with the notion that each of us have a view of morals--a subjective perspective--which suggest we have no common or shared ground in such matters.

The result, according to some who subscribe to this view of ethics, is that talk leads to disagreement, conflict, and disengagement from any effort to talk through the problem.

The concern that we are bereft of definition, have no common basis on which to precede, and our talk leads to unproductive conflict is reflected in the following comments:

"Just what is morality?"

"Different attitudes concerning right and wrong make a lawyer's job...difficult."

"In talking about the moral dimensions of our work as lawyers the first big obstacle is the fact that there are no morals. Morality is subjective. There is no objective definition of morality. So there are only things that people feel strong about."

"First, morality, either true or perceived, is ultimately a subjective, personal subject. People tend to adopt a set of values and beliefs based on personal experience. It is very hard to explain, espouse, or defend a moral system which may possibly make sense only to its creator. Therefore, one may, upon realizing that his or her standards of conduct are unacceptable to a particular group, decide to alter his or her beliefs to suit the occasion or say nothing at all."

Morals are "undeniably personal and subjective."

"Some people believe in a supreme ethic that controls their behavior regardless of the situation. Others believe that ethics change depending on the situation. Still others believe that ethics have no place in our society at all." These different views of ethics means there will be "rampant" conflict and "people do not like conflict."

"[T]he greatest stumbling block to a discussion about the moral dimensions of a lawyer's work...is a general conflict in recognized sources of morality. Some people claim religion as the source of their morality, but there are many religions. Over centuries, human beings have not been able to adjust their varying beliefs in a way which reflects a moral unanimity. For lawyers, the conflict is even more confounding. The law, itself, is practiced in a way which is evocative of religion, and purports to carry a moral weight of its own. Often there are conflicts between the religious and legal sources an attorney is spiritually and professionally required to hold sacred. Without question, at some time or another the lawyer will be forced to make a decision while laboring under the weight of a conflict of values. Perhaps it is this conflict of sources, of responsibilities, of life-altering reality, which makes clear the absolute immorality of it all."

"Moral 'discussions' can become moral 'arguments/fights' and people would rather not get involved in something divisive...and ultimately, hurtful."

On the argument that morals are personal: If morals are purely and "undeniably personal and subjective," then we are dealing not with an obstacle to moral discourse but an unmovable impediment. We would, if this view is accepted, have no more reason to engage in moral discourse with fellow lawyers than to inquire into their preferences for favor flavors of ice cream, or colors and styles of suits they wear to the law office, or the kind of office chair they use. Unless we find a way around the morals are personal and subjective argument, moral discourse seems futile.

For some, it is not the personal and subjective nature of others, but the complexity of the situations in which we must address moral issues that presents the obstacle to moral discourse.

One of you commented that there was a temptation to view lawyer ethics from a "right and wrong perspective," a temptation you viewed as problematic.

"The reality of life in this, or any other profession is that life is lived in the gray. That is not to say that the parameters do not exist, but that they are not as easily determined when mixed with deadlines, court rules, sympathetic clients, our own families, and our drive to succeed."

A corollary of the view that our morals are personal and subjective is that they are ever changing. The fact that morals, like everything else in the universe, evolves over time, suggest to some an obstacle to moral discourse.

This view was reflected in the two following comments:

"[T]he world of morals is ever-changing...."

The changes in "moral positions of society. Actions previously considered taboo are not so bad anymore. Times change and morals change.... As long as morals are changing in society, a lawyer's stance on any issue can hardly be carved into stone."

How the evolution and historical change in our moral views (as a society) pose an obstacle to moral discourse is not clear. I assume that the idea of morals changing over time is coupled with a strain of skepticism, if not cynicism: "If morals change over time, then perhaps what we view as wrong today will be accepted tomorrow." "If we can't know what the judgment of history will be on today's morals, then today's morals have no force, can make no demands on us." I think it possible to see how such arguments fail and how the argument about the history of change no more justifies or makes moral a practice like slavery as it would justifying the kind of skepticism/cynicism that suggest that because our social and moral world is in the constant process of change that we cannot know what it means to be moral.

One student notes that "my philosophy is always changing." The assumption seems to be that if your philosophy is always changing, then you have no fixed moral beliefs, and consequently, it is futile to try to talk as if there is something in place, stable, secure, unchanging for the moment, that can be addressed. I assume that this "ever changing self" argument parallels the "ever changing society" argument.

In contrast to the view that the self is ever changing, we find the contrary view, that the moral self is fully established by the time a person enter law school and with a moral self already established there is little to be done by way of moral discourse.

To my surprise, no one may elaborated on this rather conventional argument, but one of you do recognize it's existence in the following comment: "I do believe that our morals are somewhat set by the time we reach law school, but it never hurts to evaluate them."

In contrast to the idea that while our morals are established, "it never hurts to evaluate them," several of you pointed to the possibility that the confrontation with one's own working moral perspective can be quite daunting, if not downright frightening. There seems, for many, to be a perceived risk of exposure in engaging in moral discourse.

"Developing our ethic demands that we look inside ourselves and determine who we are. But, most of us do not like to view ourselves 'naked,' if you will. I am intimidated by who I really am, because it is not who I want to be, and I am sure that others share the same sentiments about themselves."

There is a "fear of confronting our own moral positions. Moral discourse is difficult because it forces us to take a position and stand strong, although hopefully without losing our ability to listen.... Many of us are not prepared to confront our own morals, much less engage in an open discussion of them with our peers."

"[F]ear of the judgment that may be passed on them by others. Ideologues on the left and right are eager to pass judgment on only moral views, but political views and larger social views as well. These same ideologues are even more eager to pass judgment on a 'ambulance chaser' or a 'heartless' criminal defense attorney.

"No one wants their morals, the thoughts and the feelings at the core of their life, critiqued and scrutinized. If your morals lie on the opposite side of the fence from your critic you are immediately stereotyped according to that belief's character. Moreover, lawyers as a whole get generally stereotyped accordingly. That all contributes to the mad descent of favor of the profession...and the eventual ruin of any good name lawyers have."

"[T]he unfortunate truth is that many people who claim to possess a moral code often fail to live by that code with no explanation as to why this disparity exists. For the sake of appearances, many are quick to point out someone else's lack of morals even though they are blind to their own moral deficit.... [W]hen convention, one has morals; when inconvenient, one does not."

"There is only one obstacle that we as lawyers (or lawyers-in-training) face in talking about the moral dimensions of our work as lawyers. It is a self-imposed obstacle. It is the same obstacle that has dogged us for years. In little league it caused us to back out of the batters box too early while waiting for that hanging curve to break, please God, please break. It keeps us from getting married too young like our parents. It stops us from raising our hand to give the answer, to ask the girl to dance, or to try the sushi.

Fear.

Raw. Naked. Explosive. Uncontrollable. Unnoticeable. In-your-face. Lurking beneath the surface. Multi-dimensional. Multi-cultural. You can buy it in bulk if you like. Our dear old friend, plain, old-fashioned fear.

What do we fear? By initiating a dialog on the moral dimensions of the legal profession we put ourselves at great risk, and as rational beings (growing more and more rational and less and less intuitive with each passing day of law school where we learn how to 'think like a lawyer') we fear risk. Stock brokers categorize us as 'risk adverse.' By starting this dialog we risk the following (in no particular order):

A meaningful discussion on the moral dimensions of lawyering demands that we expose ourselves to others and put at risk the acceptance and security that comes with silence.... In such a discussion we must confess publicly that we have questions about the substance or style of our legal education and where that education will take us in our profession. We must confess that we have doubts, moments of uncertainty, questions. How, in a profession, or at least an education, based in many ways on conformity, can such issues be raised without being rejected? Perhaps your peers also feel the same way, but they are not about to admit it. Law school and lawyering is competitive rather than cooperative. How can you express to the law review guys that you have some questions that you would like to raise about the profession?....

The fear of rejection is compounded by the fear of isolation. perhaps I am the the only one who truly feels this way. How can I be alone in this? Am I alone? You play along, you creep along your merry way, avoiding any discussion of the moral dimensions of lawyering.

[As bad as the isolation is the effort to connect with others with similar feelings. Then you encounter a new problem.] [L]et's not get too close. I need some space. You are invading my space. Back off!

The fear of intimacy. The fear that we will be drawn closer to people and have them get a good long look at us--warts and all. They will poke and prod and judge us. When we become too close to people we can no longer stay hidden or retreat into our carefully constructed public persona.

Embarking [on] this type of meaningful discussion means you must let go of the wheel because you won't be driving anymore. Such a discussion, if it is to have any significance, will no in directions over which you have no control. Like Columbus you...set out to discover the new world but instead...bump into something else. It will weave its own way. The lawyer wants to control. If you begin the discussion with a closed question or a pre-determined conclusion or destination then what is the point in going at all? The discussion will be constructed--arranged--to confirm what you already believe about lawyer. It will be...a massive rationalization...to keep moving forward. An open and frank discussion will inevitably take us places that we had no intention of going. We will lose...control. It will not be a carefully constructed legal argument interwoven with facts and law, instead...a stream of consciousness, [a] beat poem.

Fear of the truth. When you continue to question, expose, explore the moral dimensions of lawyering then you must look deeply and unblinkingly into yourself. You must be introspective. I am afraid that if I look too deeply that I will discover...I may not want to practice law or that I am not cut out for the demands of the profession. So rather than face that possibility I move forward and read the next case, write the next brief and take the next exam. If we don't think too much we can get through this. Deliberately numbing yourself in your work, [with] drink, or drugs, or whatever helps you escape.

We are all afraid of...these things and more."

Just as we must confront the compartmentalization of our "ordinary" and "professional" morality, we must also confront the fact that law and morality are sometimes in conflict:

"Society views, perhaps [in a stereotypical way], that the practice of law involves, indeed it requires, the strict adherence to laws which often times are themselves obstacles to basic human morals."

"[I]n some instances the law does not match our own moral code.... [P]erhaps the biggest problem we face is whether we should adapt our morals to the law, or rather should we adapt the law to our morals."

""[W]e often assume that if X is illegal then X is immoral, many...take a further step and conclude that if X is legal then X is moral. Although one cannot logically derive the second [premise] from the fist, the identi[fication] of morality with legality is often made. many lawyers...hold this belief without ever stating it in their minds. Believing this can lead to [the] result that no moral discussions are needed because all moral dilemmas are resolved by the law. Since X is only illegal if it is immoral, and X is only legal if it is moral, then conducting oneself within the law will result in no immoral actions. Although most people would consider such to be false, the identif[ication] of morality with legality is often a deep-rooted, unspoken assumption that hinders moral discourse."

"A society may express certain moral ideals through law, which could be called a cultural morality. Is a lawyer who acts in accordance with that morality a moral lawyer? Once again, perhaps. In a state which practices capital punishment, it might be said that the cultural morality of that state demands that a person pay for a killing with his own life. In that state, which lawyer is the more moral: the one who stretches every definition of the law to allow capital prosecutions or the one who reads every definition so narrowly that capital prosecutions are extremely rare? Each works within the structure of cultural morality, but each produces radically different results."

Some of you note that following the profession's ethical rules does not eliminate the possibility of moral dilemmas and moral choice. Indeed, the conflict between the legal profession's ethical rules and "ordinary morality" parallel the problem addressed by students who point out that law and morality are sometimes in conflict.

"Lawyers are required to follow the rules of professional responsibility...."

The ethical rules of the profession "encourage lawyers to meet only minimal standards of behavior.... Unless we, as lawyers, are pushed to develop our own ethic, we will never be worth our salt as lawyers or as people."

"Lawyers, as well as other professionals, have codes of conduct which regulate their actions. Is a lawyer who carries on his practice in conformity with the ethical codes a moral lawyer? Perhaps. However, there are times when strict adherence to ethical codes could produce an unjust results. Should a lawyer break his duty of confidentiality to protect an innocent third person?"

"Many lawyers are 'rule-minded.' ...[T]hey face the law from a rule governing standpoint. [L]egal reasoning is carried out within the guidelines of the legal rules governing a given situation.... the combination of this mindset and the existence of ethical rules of conduct, such as the Model Rules, can result in a lawyer implicitly believing that all moral questions can be resolved under these rules. Thus, whatever the rules say [is] unethical is unethical, and whatever is not considered unethical under the rules is ethical. Since all moral dilemmas are governed and decided by the rules, no moral discourse is necessary."

"It seems as if lawyers are encouraged to 'stretch the truth'...."

In law school, "lawyers begin to see ways to 'win' the case. The 'winning' lawyer is often the one who finds the most loopholes or who can 'bend' the situation into the most plausible explanation. The danger of this, however, is that law becomes a game. Many lawyers look at each case as their own personal arena of excellence. Each new client is often evaluated for how easy his case will be to win, how much time must be spent on a case with no public relations value for the lawyer or firm. Often clients with 'little' problems are given a rush job: the bare minimum required by law to receive any kind of compensation. And many lawyers take on too many clients, overextending themselves in order to fill their coffers, with the results that none of the clients receive 100% of their effort."

"The obstacles we face in discussing the moral dimensions of our work as lawyers consist largely of our own feelings of power and privilege that are fostered by our work in such a complex field. The average person doesn't understand the law. That gives the lawyer a very high position in society. Unfortunately, living on Mount Olympus can cloud the vision (all those golden rays of light!)"

"[B]eing 'ethical' immediately condemns us to a less 'successful' life."

"Remember, above all else, to be loyal to your client. Be a vigorous advocate. If you keep insisting on talking about his moral stuff you will become ineffective. You must be a good person or a good lawyer, take your pick. A discussion of morality...draw[s] you deeper into meaning but further away from functioning in our role [as lawyers who are] objective, rational, pragmatic.... Raising a discussion about the moral dimensions of our profession exposes your Achilles heel and proves that you are beatable."

"A[nother] obstacle to moral discussion is the idea that 'an ethical lawyer will be a losing lawyer.' Jay Leno recently displayed an ad for a lawyer on his television show that...read[s], more or less, 'John Doe, Esq. An Honest Attorney. But not too Honest to Lose Your Case." The belief that one must be to some extent immoral in order to be a successful lawyer impedes moral discourse because conducting oneself as a moral attorney is not the goal. Since moral conduct is not a quality of a successful attorney, ethical ideals are not needed, nor do they even need to be discussed. This belief may result from improper moral ideals already held by the lawyer (i.e. that being a successful attorney is more important than being a moral one), or by the belief that, since so many lawyers are already acting unethically to gain advantages in legal disputes, one must be unethical so as not to lose too much ground (and possibly reach unjust results). Hence, ethics [is] a liability, and ethical discourse serves no purpose. Thus, the idea that an ethical lawyer will be an unsuccessful lawyer serves as an obstacle to moral discussion."

"Many people enter the legal profession with the idea that they must only conquer the task of rendering legal services. This idea gives lawyers a false sense of security. That is, a lawyer that adopts this standard of nonaccountability protects himself from feeling guilty about the distasteful things his clients ask him to do."

"I think that too often in these last thirty years American lawyers have forgotten and neglected people. They have become too taken with the process, with the form and with the written word and they have not remembered the heart, the soul, the spirit, and the intellect that lies behind the people they represent." Janet Reno, Remarks: Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 Fordham L. Rev. 5, 8 (1994)

"To be a lawyer is not an adequate ideal or goal--not an adequate story. It is a delusion to suppose that it is adequate: lawyers who end up aiding evil in the world begin by deceiving themselves into supposing that the lawyer's professional ideal is enough for them; a result of that self-deception...is an immoral professional life in an immoral society." Thomas Shaffer, "Moral Moments in Law School," in L. Hodges (ed.), 4 Social Responsibility: Journalism, Law, Medicine 32, 47 (1978)

"[T]here is an all-embracing claim on ... [the lawyer's] whole being that far transcends the explicit structures of professional obligations." James A. Pike, Beyond the Law 90 (Garden City, New York: Doubleday & Company, 1963)

"A professional to be worthy of the name must inculcate in its members a strong sense of the special obligations that attach to their calling. One who undertakes the practice of a profession cannot rest content with the faithful discharge of duties assigned to him by others. His work must find its direction within a larger frame. All that he does must evidence a dedication, not merely to a specific assignment, but to the enduring ideals of his vocation. Only such a dedication will enable him to reconcile fidelity to those he serves with an equal fidelity to an office that must at all times rise above the involvements of immediate interest." "Professional Responsibility: Report of the Joint Conference," in Andrew Kaufman, Problems in Professional Responsibility 2-16, at 4 (2nd ed. 1984)

"We focus in like Mongooses on single purpose activity and think, quite wrongly, that that is what it is to be alive--to be able to pursue a single identified purpose. But what it is to be alive is to handle highly multiple purposes and to handle them by virtue of highly complex movement in the receiving end, in the head, maybe, or wherever it is." Gregory Bateson, Intelligence, Experience, and Evolution, 1 Re-vision 50, 52 (Spring, 1978)

Finally, one of you pointed out that "financial demands" on an attorney could be an obstacle to making moral choices.

[For a more far reaching response to the various obstacles posed by those who hold moral discourse in disdain or view it as impractical or impossible, see in James R. Elkins, Moral Discourse and Legalism in Legal Education, 32 J. Legal Educ. 11 (1982); James R. Elkins, Symptoms Exposed When Legalists Engage in Moral Discourse: Reflections on the Difficulties of Talking Ethics, 17 Vt. L. Rev. 353 (1993)]