I have often wondered whether students of lawyer ethics might not be as well advised to study the ethics of doctors, nurses, businessmen and business women, church ministers, and journalists, even as they study the ethics of lawyers. If ordinary morality is going to have a place in the world of lawyering, we are going to need an ethics (and ethic) that reaches beyond the profession.

The stories that provide the most powerful moral lessons are sometimes about lawyers and sometimes not. Bowen McCoy is an American businessman and not a lawyer. He tells a story in the Harvard Business Review about his efforts to traverse and 18,000-foot peak in the Himalayas and an encounter with a holy man that might be of interest to lawyers. [Bowen H. McCoy, 61 (5) The Parable of the Sadhu, Harvard Business Review 103 (September/October, 1983)]. It was during his preparation for a final ascent of this Himalayan peak that he encountered a near-naked holy man--a Saudi--suffering from hypothermia and found himself focusing a "classic" moral dilemma. Bowen McCoy is a Wall Street realty executive, not a lawyer, but when he talks about ethics he talks a language we can all understand.

In "The Parable of the Sadhu," McCoy describes efforts of he and his companion, Stephen, an anthropologist, accompanied by a group of climbers, to traverse an 18,000-foot peak in order to reach the village of Muklinath, an ancient holy place. The peak was the highest mountain pass they had attempted to traverse in a sixty-day Nepal hike. Six years earlier, McCoy had attempted a similar climb and had been forced back by altitude sickness. The weather, on the day of the most recent attempt, was not good and McCoy feared they would not make it over the pass.

At 15,500 feet, it looked to me as if Stephen were shuffling and staggering a bit, which are symptoms of altitude sickness.... I felt strong, my adrenaline was flowing, but I was very concerned about my ultimate ability to get across. A couple of our porters were suffering from the height, and Pasang, our Sherpa sirdar (leader), was worried.

Just after daybreak, while we rested at 15,500 feet, one of the New Zealanders, who had gone ahead, came staggering down toward us with a body slung across his shoulders. He dumped the almost naked, barefoot body of an Indian holy man--a sadhu--at my feet. He had found the pilgrim lying on the ice, shivering and suffering from hypothermia. I cradled the sadhu's head and laid him on the rocks. The New Zealander was angry. He wanted to get across the pass before the bright sun melted the snow. He said. "Look, I've done what I can. You have porters and sherpa guides. You care for him. We're going on!" He turned and went back up the mountain to join his friends.

I took a carotid pulse and found that the sadhu was still alive. We figured he had probably visited the holy shrines at Muklinath and was on his way home. It was fruitless to question why he had chosen this desperately high route instead of the safe, heavily traveled caravan route through the Kali Gandaki gorge. Or why he was almost naked and with no shoes, or how long he had been lying in the pass. The answers weren't going to solve our problem.

Stephen and the four Swiss began stripping off outer clothing and opening their packs. The sadhu was soon clothed from head to foot. He was not able to walk, but he was very much alive. I looked down the mountain and spotted below the Japanese climbers marching up with a horse.

Without a great deal of thought, I told Stephen and Pasang that I was concerned about withstanding the heights to come and wanted to get over the pass. I took off after several of our porters who had gone ahead.

The steep part of the ascent where, if the ice steps had given way, I would have slid down about 3.000 feet, I felt vertigo. I stopped for a breather, allowing the Swiss to catch up with me. I inquired about the sadhu and Stephen. They said that the sadhu was fine and that Stephen was just behind. I set off again for the summit.

Stephen arrived at the summit an hour after I did. Still exhilarated by victory, I ran down the snow slope to congratulate him. He was suffering from altitude sickness, walking 15 steps, then stopping, walking 15 steps, then stopping. Pasang accompanied him all the way up. When I reached them, Stephen glared at me and said: "How do you feel about contributing to the death of a fellow man?"

I did not fully comprehend what he meant. "Is the sadhu dead?" I inquired.

"No," replied Stephen, "but he surely will be!" After I had gone, and the Swiss had departed not long after, Stephen had remained with the sadhu. When the Japanese had arrived, Stephen had asked to use their horse to transport the sadhu down to the hut. They had refused. He had then asked Pasang to have a group of our porters carry the sadhu. Pasang had resisted the idea, saying that the porters would have to exert all their energy to get themselves over the pass. He had thought they could not carry a man down 1,000 feet to the hut, reclimb the slope, and get across safely before the snow melted. Pasang had pressed Stephen not to delay any longer. The Sherpas had carried the sadhu down to a rock in the sun at about 15,000 feet and had pointed out the hut another 500 feet below. The Japanese had given him food and drink. When they had last seen him he was listlessly throwing rocks at the Japanese party's dog, which had frightened him.

We do not know if the sadhu lived or died. [McCoy, at 104]

McCoy explains that he was deeply troubled by his decision to leave the sadhu behind after providing minimal care. The mountain ascent was not, McCoy now admits, as important as he assumed while he was on the mountain. He puzzles over his failure to provide more care for the sadhu. McCoy's "parable", not unlike those found in the Bible, has a moral message, but parables don't serve up their messages in flashing lights. McCoy tries, along with the reader, to figure out what he has learned and how it can be understood and given practical meaning.

McCoy tries, along with the reader, to figure out what that message is and how it can be understand and how it can be given practical meaning.

McCoy's "parable" teaches, not only because it offers what McCoy calls a "classic moral dilemma," but is told in the form of a compelling story. McCoy offers, in his reflections on his encounter with the sadhu, some instructive clues about how ethics works. It is a story that illustrates how our purposes, morally neutral in one context--McCoy did not set out on his journey to harm a holy pilgrim--blind us to the needs of others, and paradoxically, our own needs as well.

McCoy's raises a question most relevant to lawyers who assume that in the zealous representation of a client they have no duty to avoid harm to those who cross their path while acting on behalf of their client. Do I follow through on my goal of getting over the mountain or give up that goal to help another human being? If we have some duty to care for others, then how is it that we so easily "walk" past them?

("Suppose a client arrives at your office seeking help to achieve ends which are unjust or immoral.... A bitter husband seeks custody of his children in a divorce battle simply to hurt his wife, or a debtor wants to escape an honest debt by invoking a legal technicality against the debtor. How should you respond? First it should be noted that you must recognize that there is a moral conflict in the situation presented by the client. This may not occur if you are sufficiently isolated from moral claims outside your professional role. You, as a lawyer, are particularly vulnerable to this way of missing moral issues because you are constantly called upon in your professional life to act as the agent of your clients--to speak or make arguments on their behalf whether you agree with those arguments or not." [Huff, at 50]

McCoy, off the mountain, begins to see that he had a duty (of some sort) to provide better care for the sadhu. Passing over mountains with their clients have a duty to those they encounter along the way? McCoy puzzles over the fact that his ethics failed him up on the mountain in his encounter with the sadhu. Even more puzzling is that his friend, Stephen, a "committed Quaker with deep moral vision" who saw the moral situation in a way McCoy did not, was also ineffectual. [McCoy, at 104]. It was, says McCoy, Stephen's moral vision that helped him know, in ways that he did not, that they had a duty to care for the sadhu, and that whatever reason they might have for continuing the Nepal climb and traversing an 18,000--foot peak was morally insufficient to abandon the sadhu. Stephen claims that they had failed to provide adequate care for the sadhu and attributed their failure to an unwillingness to assume personal responsibility in past because the sadhu was so unlike themselves in appearance. [Id. at 104-106]

McCoy, trying to draw out the lessons from the encounter with the sadhu suggests that it is the mistakes we make about purposes and goals that block our moral vision. McCoy recounts a previous trip to Nepal in which he had "lived in a Sherpa home in the Khumbu, for five days recovering from altitude sickness" and that one of Stephen's most memorable experiences in a previous Nepal visit had been "an invitation to participate in a family funeral ceremony in Manang. Neither experience had [anything] to do with climbing high passes of the Himalayas." [Id. at 108]. McCoy notes that these unexpected experiences were not part of their reasons for being in Nepal and wonders "why" they had been so adamant about getting over the mountain when it was the unexpected and unplanned for experiences that had been most meaningful to them. A good question for lawyers!

Wayne Brazil, a former law teacher and now a Federal magistrate, provides another story about those we pass along the way.

I was walking one morning from the commuter train station to school. I encountered one of those dirty, hapless, vaguely threatening people whose presence gives the Tenderloin section of San Francisco its special charm. To make my story easier to tell I'll call him Archie.

My first reaction to Archie was fear, but that's not particularly remarkable, because my first reaction to almost everything is fear. My second reaction was more noteworthy. It was a crisp sense of indignation. I was moralistic, condemning him (silently, of course) for being in the state he was in, for not working, for not seizing control over his life and earning the money to pay his own way.

Then, before these feelings had played themselves out, I became self-conscious about the way I was reacting. I began to think about the distance that seemed to separate me and Archie. It occurred to me that I really had no understanding at all of him or his situation. I had no idea what forces had been at work in his life, what limitations God or history had imposed on him. I had no idea whether he had the capacity to be anything other than what he was--whether he had that morning, or ever had, any meaningful control over his fate.

As I became more self-conscious about my ignorance I also became more embarrassed by my initial moralistic and condescending reaction.

I realized that my reaction had been born in the gulf that separated me and Archie--and that that reaction was graphic evidence about how wide that gulf had become.

I began to think about the many different ways the distance between me and the Archies of the world has grown in the last several years.

As I have worked hard to succeed and to contribute, I have become more specialized, and more sophisticated in my speciality. And I have spent almost all of my time with comparably specialized and sophisticated people.

The hard work that has brought me material comfort and professional achievement has made me tired, and tired o being tired. So I have become much less patient with people who don't seem to be trying as hard, or who appear to rely on others to meet even their most basic needs.

In short, I have become preoccupied with my struggle to do better and with what that struggle has cost me. And in the preoccupation I have permitted self-serving, moralistic assumptions to displace the more open-minded concern about people like Archie that I once felt.

This train of thought led to the perception that troubled me the most; just as the situational distance between me and Archie has grown largest, my empathy--my impulse to try to understand him--has been evaporating.

Pretty heavy stuff to be pondering on a summer morning. There was one more thing. As an erstwhile historian it occurred to me that I probably was not the only person who had drifted in these emotional directions during the last decade. It was the spectre of many people who occupy positions like mine moving in emotional directions like this that inspired [this reflection on] ... deterioration in our sense of community. [Wayne Brazil, Reflections on Community, Responsibility, and Legal Education, 9 J. Leg. Prof. 93 (1984)]

Brazil explains his disdain for Archie, the street person, by juxtaposed Archie's apparent failure in life to the success he had achieved in his work and that he spent so much time with other successful people like himself. Brazil's success brought "material comfort and professional achievement," but it had also brought him weariness. Brazil says he has become "preoccupied" with his own struggle, a preoccupation that resulted in "self-serving, moralistic assumptions" about the homeless Archie. Like McCoy, Brazil's work has sanctioned if it has not prompted, an erosion of empathy, or what Maxine Greene would call moral imagination. [Greene's theory of "moral imagination," found throughout her work, is explored in two essays, "The New Freedom and the Moral Life" and "Wide-Awakeness and the Moral Life," in Maxine Greene, Landscapes of Learning 147-157, 42-52 (New York: Teachers College Press, 1978)] Brazil suggests that his, and by implication, McCoy's story, reflect the "emotional direction" we have been traveling during the last decade. (Moral malaise, when we give it the attention it deserves, does indeed have an "emotional direction.")

"It has been enormously popular to say that there are no moral experts. But this is said thoughtlessly. Even those who say it seek advice about hard cases; and even they regard some people as typically foolish and others as not foolish. These critics notice there are a few people who have a certain knack for finding their way through very difficult moral situations without doing the sorts of wrongs which the rest of us find so easy to do. Indeed, the critics of the supposed established wisdoms are themselves typically uttering the wisdom or findings of other persons, whom they implicitly regard as their gurus. The reality is that each of us has probably known at least one wise person--perhaps a parent, relative, pastor, priest, rabbi, teacher, or neighbor. Such people strike us as knowing what they are doing when the rest of us do not. They impress us not simply as lucky, but as having unusual insight into moral situations and unusual ability to put their insight into practice. They are good people. They have something enviable. We might call it judgment. Aristotle called it practical wisdom. And he thought this trait so important that he mentioned it in his famous account of what virtue is. He remarked that virtue is "settled disposition of the mind determining choice, and it consists in observing the mean relative to us, a mean which is determined by reason, as a person of practical wisdom would determine it." [Jon Moline, Classical Ideas About Moral Education, 2(8) Character 1 (1981)]

There are many stories like McCoy's and Brazil's, stories about the driving, zealous energy we bring to our pursuits, an energy, drive, and purposefulness that can, barring caution and reflection, blind us to the care we could provide others. More truthful about our own stories than we tend to be, we could each tell a story about choices we have made, like McCoy's and Brazil's, in which we fail to see the moral situation we are in, and when we do, try desperately to justify the choices we have made. McCoy's and Brazil's stories, are made still more complex by the existence of our own stories, and the way these stories find their way into our efforts to study the moral lessons offered by McCoy and Brazil. Stories add up. Our stories matter. Stories matter and have power not because we talk about them as we do or because we extract moral lessons from them, but by the more infinitely subtle process of shaping our imagination and anchoring us against the undertow of an unbounded adversarial zeal that teaches that we need not care for others.

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