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Practical
Moral Philosophy for Lawyers
Introduction: Imagining Our Lives
 Reading Assignment: "Visions
of Lawyering," in John W. Teeter, Into the Thicket: Pursuing Moral
and Political Visions in Labor Law, 46 J. Legal Educ. 252, 255-260 (1996)
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"Our ordinary conceptual system, in terms of which we
both think and act, is fundamentally metaphorical in nature.
The concepts that govern our thought are not just matters of
the intellect. They also govern our everyday functioning, down
to the most mundane details. Our concepts structure what we
perceive, how we get around in the world, and how we relate
to other people. Our conceptual system thus plays a central
role in defining our everyday realities."
[George Lakoff & Mark Johnson, Metaphors We Live By 3 (Chicago:
University of Chicago Press, 1980)]
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| "When we look closely at any powerful cluster
of metaphors, we can infer from it the maker's world."
[Wayne Booth, The Company We Keep: An Ethics of Fiction 335 (Chicago:
University of Chicago Press, 1988)] |
| "Some metaphors work better than others in
enabling men [and women] to confront given situations, according
as they face problems of shape or feeling." [James
W. Fernandez, Persuasions and Performances: The Play of Tropes
in Culture 29 (Bloomington: Indiana University Press, 1986)] |
| "To use metaphor signals that language is
no longer capable of doing its work in a simple descriptive manner."
[Jeff Mason, Philosophical Rhetoric: The Function of Indirection
in Philosophical Writing 29 (New York: Routledge, 1989)] |
| "It is not the role of metaphor to draw our
sight to what is there, but to draw our vision toward what is
not there and, indeed, cannot be anywhere. Metaphor is horizontal,
reminding us that it is one's vision that is limited, and not
what one is viewing." [James
P. Carse, Finite & Infinite Games: A Vision of Life in Play
and Possibility (New York: Free Press, 1986)] |
| "Somehow, persons must be enabled to discover
that they are sometimes able to do something other than what they
are doing, that they are even able (at many junctures) to direct
the course of their own lives. The ability to act in such a fashion
depends . . . on the capacity to break with the notion that the
world around is finished and predefined. It ought to be possible
to learn how to identify interstices, openings, spaces in which
one can move. It ought to be possible, under diverse circumstances
to learn to identify alternatives." [Maxine
Greene, Landscapes of Learning 155 (New York: Teachers College
Press, 1978)] |
| "What really matters in a metaphor is the
psychic depth at which the things of the world, whether actual
or fancied, are transmuted by the cool heat of the imagination."
[Philip Wheelwright, Metaphor and Reality 71 (Bloomington:
Indiana University Press, First Midland Book, 1968)] |
(1) "How are you to speak of what you do as a lawyer, how are
you to express even to yourself how you regard your professional life?"
[James Boyd White, The Legal Imagination: Studies in
the Nature of Legal Thought and Expression 757 (Boston: Little, Brown
and Company 1973)]
(2) John Teeter outlines the following "visions of lawyering":
 lawyer as agnostic [Agnostic: of or relating
to the belief that the existence of any ultimate reality (as God)
is unknown and prob[ably] unknowable; noncommital, undogmatic (syn.:
atheist)] [Webster's Seventh New Collegiate Dictionary 18 (1967)]
lawyer as friend
"ethic of care"
"You Are What You Do" vision
lawyer as statesman [Tony
Kronman on the lose of this ideal]
lawyer as rebel
Teeter's pedagogically inspired "visionless
vision."
How do each of these "visions" of lawyering work? At this
point in your legal career do you find yourself more or less drawn
to one of these particular visions?
(3) Thomas Shaffer and Robert F. Cochran, Jr. , in
Lawyers, Clients, and Moral Responsibility (1994), outline four approaches much in the spirit of Teeter's
"visions of lawyering":
lawyer as godfather
lawyer as hired-gun
lawyer as guru
lawyer as friend
[Thomas L. Shaffer and Robert F. Cochran, Jr., Lawyers,
Clients, and Moral Responsibility 5-54 (St. Paul: West Publishing,
1994)]
Lawyer as godfather. "The figure
in our popular culture that makes choices for someone, irrespective
of harm to others, and who carries them out, often with harm to others,
is the godfather of the Mario Puzo novel and the Francis Ford Coppola
films." [7]. "The godfather lawyer
seeks the client's financial benefit, without regard to harm caused
to other people and without serious concern for the client's relationships--or
even for what the client really wants." [8]
Lawyer as hired-gun. "The hired
gun riding in for the shoot-out in Deadwood Gulch is for some lawyers
an attractive machismo image." [29]. The
hired gun often assumes this position in the moral guise of client autonomy.
The client has "rights" and I, as your lawyer, will pursue
them whatever they may be, so long as you, the client, pay the fee.
It may be principle (autonomy) and it may be (money), or both, that
drive the hired gun.
Shaffer and Cochran reject a conception of client autonomy that seeks
to make the hired-gun ethic more palatable. They find it "unrealistic"
and "unwise" to suggest that lawyers do not influence their
clients. Lawyers do not, and cannot, argue Shaffer and Cochran "exist
in the lonely privacy the ethics of autonomy assumes. We are all dependent
on others. . . . Pretending that lawyers can avoid influence merely
enables lawyers to avoid taking responsibility for the influence they
have." [27] [See Warren Lehman, The
Pursuit of a Client's Interests]
Legal representation that focuses on the autonomy of the client can
be bad for others and bad for clients, but it can also be bad for
lawyers. It imposes limits on the lawyer's conscience. Lawyers who
are devoted to client autonomy operate on a curious sort of vicarious
morality. They act for another, pursue the ends of another. They invite
moral conflict as they do things for clients that they believe are
wrong. [28]
Lawyer as guru. "We refer to the lawyer who makes moral
choices for clients as 'guru,' because that is what gurus do: they tell
their followers what to do." [32]
Lawyer as friend. "The model that we advance for the lawyer
who is concerned with the goodness of the client is the lawyer as friend.
We are not suggesting that the lawyer can become a friend to every client,
but that the lawyer and client should deal with moral issues that arise
in representation in the way that friends deal with moral issues."
[44-45]
"We use the term 'friend' in its traditional
meaning, as developed by Aristotle. . . . '[T]he traditional idea
of friendship had three essential components. Friends must enjoy one
another's company, they must be useful to one another, and they must
share a common commitment to the good.'" [45]
"Pleasure in one another's company
may or may not be a part of the lawyer-client relationship but it
is more important than most lawyers realize. In a survey of lay people,
when asked what they wanted in a lawyer, their first response was
that they wanted a lawyer who would be friendly. Often, clients come
to lawyers under unpleasant circumstances--they have been charged
with a crime, someone has treated them unfairly, they are having marital
problems, or they are considering what will happen to their family
when they die. If they are to engage in moral discourse with the lawyer,
they will need to be comfortable with the lawyer. The common word
for what the lawyer needs to be is 'friendly.'" [46]
"The second aspect of friendship--friends
are useful to one another--is almost always present in the lawyer-client
relationship" [46]
"Most importantly, friendship is a
relationship in which the lawyer sees the client as a collaborator
in the good. . . . Friends help us to become better people in many
ways. First, we learn to care for friends as they care for us, and
through them, we learn to care for others. Friends teach us skills
for caring. A lawyer who cares for clients enables the client to care
for others." [47]
[The "lawyer as friend" first appeared in
the legal ethics literature in an article by Charles Fried. Fried used
the lawyer as friend to support the very kind of lawyering that Shaffer
& Cochran want to question. Fried's thesis received a great deal
of attention and you might want to read the original article. See
Charles Fried, The Lawyer as Friend: The Moral Foundations of the
Lawyer-Client Relation, 85 Yale L. J. 1060 (1976). For a response to
Fried's attempt to use the "friend" analogy to support the
moral notion that lawyers have limited obligations to anyone but the
client, see Edward A. Dauer and Arthur Allen Leff, Correspondence: The
Lawyer as Friend, 86 Yale L. J. 573 (1977)]
(4) Has Teeter, in conjunction with Shaffer and Cochran, exhausted
the possible images and metaphors for a lawyer's moral relationship
with a client? Consider the following ways we might think and talk about
ourselves as lawyers:
Lawyer as librarian (who knows
where cases and rules can be found);
Lawyer as service technician who
can fix relations and processes that are broken; technicians of the
more creative sort who can set up relations and processes so that
things can happen (start a business, utilize private property in new
ways, or create new forms of property interest);
Lawyer as advocate (speaking for
others in a way to make their stories, causes, and complaints heard
by those who are legally empowered to decide disputes) (and out of
this advocacy role, arises the image of the lawyer as story-teller,
and when our words become fierce, warrior or gladiator);
Lawyer as partisan, which Webster's
Seventh New Collegiate Dictionary (1972) defines as one who "takes
the part of another: supporter." A partisan is a follower (in
our case, of clients and their causes). It is also used to designate
"a member of a body of detached light troops making forays and
harassing an enemy"; "a member of a guerrilla band operating
within enemy lines";
Lawyer as counselor (an advisor
who exercises independent judgment and uses their knowledge to a client
clarify goals, explore consequences of goals and the relation of means
and ends; in the broadest sense an advisor engages those they represent
in deliberation about how to be wise);
Lawyer as promoter of social justice;
and as an agent of social change (or, conversely, as a conservator
of the status quo);
Lawyer as seeker of truth (on
behalf of a client);
Lawyer as shyster, defined in
Webster's Seventh New Collegiate Dictionary as "one who is professionally
unscrupulous in the practice of law or politics." [806].
The synonym for shyster is pettifogger. A pettifogger is one
who engages in legal chicanery. To pettifog is "to quibble over
insignificant details" or cavil. To cavil is "to raise trivial
and frivolous objection." [133]
Which of these images/metaphors/visions of lawyering do you expect
to embrace as a lawyer? Which do you expect to find other lawyers
embracing?
Notes
1. Richard Rorty, a philosopher, would have us seek
"edification."
I shall use "edification" to stand for
this project of finding new, better, more interesting, more fruitful
ways of speaking. The attempt to edify (ourselves or others) may consist
in the hermeneutic activity of making connections between our own
culture and some exotic culture or historical period, or between our
own discipline and another discipline which seems to pursue incommensurable
aims in an incommensurable vocabulary. But it may instead consist
in the "poetic" activity of thinking up such new aims, new
words, or new disciplines, followed by, so to speak, the inverse of
hermeneutics: the attempt to reinterpret our familiar surroundings
in the unfamiliar terms of our new inventions. In this "edifying
discourse," we are "supposed to be abnormal"
to engage in discourse that "take[s] us out of our old selves
by the power of strangeness. . . ." [Richard Rorty, Philosophy
and the Mirror of Nature 360 (Princeton: Princeton University Press,
1979)]
2. "[P]oker cannot be said to bear any kinship
to the profession of law, excepting that in both games you are dealing
with chances, which always helps somewhat to relieve one from the tedium
and boredom of law." [Clarence Darrow, The Story of My Life 36
(New York: Da Capo Press, 1996) (1932). But see Lisa Scottoline,
Running From the Law 1-7 (New York: HarperCollins, 1995)]
3. On metaphors and law: Elizabeth G. Thornburg, Metaphors
Matter: How Images of Battle, Sports,and Sex Shape the Adversary System,
10 Wis. Women's L. J. 225 (1995).
4. On lawyers and the "ethic of care" see:
Rand Jack and Dana Crowley Jack, Moral Vision and Professional Decisions:
The Changing Values of Women and Men Lawyers (New York: Cambridge University
Press, 1989).
5. On the lawyer as "hired-gun," see: "A
Troubled Profession," in Paul G. Haskell, Why Lawyers Behave as
They Do 85-108 (Boulder, Colorado: Westview Press, 1998).
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