John D. Ayer, in an article entitled "How to Think About Bankruptcy Ethics," 60 Amer. Bankruptcy L.J. 355 (1986) argues that there are two significant barriers to "clear thinking" about the ethics of bankruptcy lawyers, a problem we might find for lawyers more generally. The first barrier "concerns the nature of 'ethics' itself." Ayer contends "that we don't know what, "makes a problem 'ethical.'" [355] The result is that we tend to ignore what are clearly ethical problems and conversely treat as ethical problems those matters "that are really nothing of the sort." [355] The problem, as Ayer describes it, is not peculiar to bankruptcy lawyers. The second barrier to "clear thinking" about ethics, according to Ayer, concerns the bar's "official pronouncements" on lawyer behavior. [356]

(1) Does thinking about ethics call into question the conventional values of everyday lie?

(2) Does thinking about ethics work the same as thinking abut other law school subjects like constitutional law, torts, or criminal law?

(3) How can we think about ethics, at least when we do our thinking in the presence of others, without exacerbating conflict?

We are told that we have become an "information society." We no longer see ourselves as makers, or builders, or doers. Now we create information, provide information, broker information, manipulate information, receive information. Lost in the information we get, provide, lose, and can't keep up with we can turn to a more fundamental question--what is worth knowing? The question seems as relevant to law and the education of lawyers as it does to an undergraduate liberal arts major, or for that matter, a student studying computer science. (That we call working with computers--computer science--is not without significance.) We stand at a cross-roads. There is much talk of crisis. Economic crisis. Social crisis. Energy crisis. Religious crisis. Educational crisis. Personal crisis. When there is talk of crisis we tend to ask what can be done? If there is a crisis, then there must be something to do, some action to take, some reform that can be implemented. The Western mind-set does not condone passivity in the face of crisis. It seems to be a part of our national character, at least since the late 19th century, to bring knowledge to bear on whatever ails the body politic, or for that matter the physical body. If there is something wrong, we try to identify a problem and then solve it. With knowledge and will we "overcome" problems. Whenever we are at a cross-roads, perceive a crisis, and turn to knowledge as a tool for reckoning with problems we find it propitious to look more closely at the knowledge that we find available and how we go about using it. It seems inevitable at such times, that we begin to look for "grand theories" to explain social crisis and the personal pathologies that accompany social change. Even as "grand theory" is revived, it is suggested that no such overarching, all-embracing, grand social theory is possible and that we are destined to live in a world increasingly fragmented, compartmentalized, mechanized, and computerized--a world in which alienation is not so much studied and disputed as accepted as inevitable.

The law, the courts, judges and lawyers, law students and law teachers are of necessity a part of this world. It is not clear exactly what the relationship of law is to other social institutions, or what kind of role judicial decision-making has on social change, or whether lawyers are truly significant in the overall scheme of things. In saying it is not clear, I do not mean to suggest that such concerns have been ignored by legal scholars or others. There is, in fact, a rather substantial body of literature on law and social change, on the role of the courts (especially the Supreme Court) in promoting and retarding social change, and the role of lawyers in exacerbating the growing conflict in an increasingly pluralist society.

Having no prescription for the social ills that engulf us and no recommendations for how law, lawyers, law teachers and law students should respond, I agree with Ernest Becker's poignant statement in The Denial of Death that "everything is not possible." A grand theory that will explain, much less alleviate our woes, does not seem likely. Passivity and resignation begin to appear as rational alternatives to a deepening despair. Hope becomes a personally held secret for fear that others will think us delusional.

Thomas W. Giegerich, in "The Lawyer's Moral Paradox," 1979 Duke L.J. 1335, 1355-1357, 1358, asks whether a lawyer, acting as a lawyer, lives as he ought and turns to Nietzsche for the basic idea that "culture assigns to everyone the single task of `promot[ing] inside and outside of ourselves the generation of the philosopher, the artist, and the saint, and thus to work at the perfection of nature.'" Giegerich argues that

Against such a standard, the lawyer's life fares poorly. There is an essential contentiousness inherent in the role of lawyer that is far removed from the mode of existence that Nietzsche envisioned. Indeed, society needs lawyers because, as a function of universal mistrust, people require advocates in their disputes with other persons. Lawyers are summoned so that one person or institution may collect his legal due from another. Problems of crime, poverty, war, and interpersonal strife necessitate social taxing and spending. Because man is essentially egoistic, he needs lawyers to minimize his forced financial contribution to the solution of social evils, and, at the opposite end of the spectrum, he needs them just as much to effect the collection of that contribution. Observations of this sort could be continued at length. To the extent that the law serves to bring people together in a semblance of order and harmony, it represents the essential disharmony of man. The law undoubtedly provides an invaluable service in performing its harmonizing function; however, for a person to make his living as its servant appears to compromise his fundamental human potential to transcend the imperfections in man that necessitate law in the first place.

Undeniably, this troublesome feature of a lawyer's existence is not altogether absent among other professions. Parallels may be drawn to the life of the policeman or the judge, for example. However, the comparison is incomplete. Unlike either the policeman or the judge, each of whom arbitrates the tensions among conflicting parties as justice demands, the lawyer in many of his roles advocates the position of one or two parties. Whether negotiating, litigating, or just assisting with business planning, the lawyer acts as agent for one of two sides who are in actual or potential conflict. In short, he functions in an essentially combative capacity.

Finally, there are conflicts both between the lawyer and the client and between the lawyer and his adversaries at the bar. These conflicts are morally debilitating. The conflict between lawyer and client, although most pronounced when the client is indifferent to the immorality of his conduct, exists to some extent in every lawyer-client relationship because of the unnatural way in which the interests of the client become relevant to the lawyer. Because the lawyer generally does not know his client as a person prior to taking his case, he cannot take a personal interest in the client's affairs, at least initially. After all, concern for others grows out of interpersonal relationships and does not generally originate in role-defined relationships in which both client and lawyer have only a circumscribed interest in one another.

The tension among adversaries is of greater concern. Rather than merely posing an obstacle to true interpersonal relationships, the tension created by the principle of advocacy creates an artificial-enmity among members of the profession representing clients with adverse interests. Of course, normal civility and fairness can minimize the tension, but the lawyer's role as advocate of his client's best interests requires that a certain untrodden area of potential interaction be left between lawyers on opposing sides of a controversy. While lawyers should not lie on behalf of their clients or use unfair tactics in order to secure an advantage for their clients, at the other end of the spectrum, lawyers also may not make concessions or actively "collaborate with the enemy" if this is not in the best interests of the client, regardless of the merits of the respective clients' positions. Because of the way the system is currently constituted, lawyers have no reason even to be inclined to seek the most judicious result rather than the client's self-interest. Hence this is often the cause of antagonism among lawyers--an unhealthy but long-nurtured concern for winning and losing that obscures the ideally existing concern for justice.

* * * *

The broader considerations raised . . . regarding the tensions intrinsic to the lawyer's role in our society are perhaps unanswerable. If these are tensions that are traceable to human imperfection, then perhaps the lawyer's role is singularly destructive of the potential in each of us for transcendence of that imperfection. If, however, these are tensions that may be traced to man's imperfectibility (a view to which most of us perhaps subscribe), then the lawyer's place in society is not so ignoble after all. Under this latter view, the lawyer is a primary actor in the resolution of recurring conflicts, conflicts that are in some sense an essential and eradicable feature of human existence. Under the former view, however, the lawyer is a participant in a way of thinking and acting that perpetuates unnecessary conflicts for which there exists some final solution within man's spiritual grasp. Of course, if one opts for this position, he has evidenced an optimism for mankind that is only paralleled by the negative message it has for lawyers. Another paradox?

 

Course Readings   Home Page