Practical Moral Philosophy for Lawyers Scene 2: A Law Office Conversation   Reading Assignment: Louis Auchincloss, Diary of a Yuppie 3-11 (Boston: Houghton Mifflin, 1986) (excerpt). (1) Robert Service has been at the law firm of Hoyt, Welles & Andrew for eight years and is unashamed in proclaiming his "sole ambition" and "obsession" is to become a partner the firm. (3). Ambition, in the eyes of Robert Service, as for many, is considered a virtue. But in Service's case, one might question ambition as virtue. (i) Has Robert Service let ambition get the best of him? (ii) How does ambition play itself out in your work as a law student? (iii) Do you see yourself as an ambitious person? If so, what does that mean? Ambition: [Middle English from Middle French or Latin, literally, going around] an ardent desire for rank, fame, or power; desire to achieve a particular end; applies to the desire for personal advancement or preferment and may suggest equally a praiseworthy or an inordinate desire [Webster's Seventh New Collegiate Dictionary (1972)] (2) Service refers to his work as a corporate takeover specialist as "warfare." (3). (i) What's the moral implication of practicing law as a form of "warfare"? (Warfare is a metaphor. We're encounter some in working with Seymour Wishman's Confessions of a Criminal Lawyer and there will be others along the way. You might want to look up the word metaphor in a good dictionary.) (ii) When Service quips--"in warfare all is fair"--is he perhaps saying more about himself than he realizes? (iii) Does the fact that Robert Service is a lawyer create an obligation to use words like "fair" in a more careful, prudent manner? If lawyers, by occupation, are wordsmiths, and a wordsmith makes poor use of a word, is there special cause for alarm? (3) Service meets with Blanders Blakelock, a senior colleague and mentor, to discuss "tactics" in a pending case. Blakelock finds the tactics Service wants to use offensive. Service knows Blakelock well enough to speculate that Blakelock isn't going to approve his proposed strategy. In musing about the meeting in which he will discuss the matter with Blakelock, Service tells us something about his relationship with the senior Blakelock. (i) What does Service's relationship with Blakelock tell us about mentoring in law firms? (ii) Service describes Blakelock as paternalistic. What kinds of paternalism have you experienced as a law student? How have you responded to it? Does your response to paternalism in legal education suggest how you might deal with it as a young associate in a law firm? What kind of paternalism do you expect to find in the practice of law? (iii) Compare Service's relationship with Blakelock and Seymour Wishman's relationship with Judge Barrett. [See Seymour Wishman, Confessions of a Criminal Lawyer 7-9 (New York: Penguin Books, 1982)] (4) In response to Blakelock's paternalism and affection, Service tells us it was to his advantage to "play along" because Blakelock was a senior partner and had his "destiny in his hands." (6). (i) When Service "play[s] along" with Blakelock is he being duplicitous?   [Duplicity: doubleness of thought, speech or action; esp: deception by pertaining to feel and act one way while acting another. [Webster's Seventh New Collegiate Dictionary (1972)]   (ii) Is it duplicitous to "play along" with a teacher to get a good grade?   (iii) Does Blakelock, in caring for Service, create a reciprocal duty on the part of Service? If so, a duty to do what? Service contends any such a duty is an "illusion." Do you agree?   (iv) How do caring efforts of a teacher create a duty on the part of students? What is your duty to the teacher of this course? In what sense, moral or otherwise, would it be an "illusion" to assume that teachers and students create duties by their care for each other? Or, are these duties a "fantasy" as Service suggests?   (v) If moral duties are not created in exactly the fashion denied by Service, how are they created? (vi) How does Service try to persuade you that Blakelock's caring for him does not create a duty? (5) Service raises an issue about the way different generations view morality. He contends that the practice of law has always been something of a "game"--notice still another metaphor--and that Blakelock isn't willing to recognize it such. Service says, "today we're franker about it [that is, the law being a game]. And I think that's better." (10). (i) Is the different ethic and ethics we find being played out here by Service and Blakelock a matter of different generations, different times? [You might here want to review Seymour Wishman's reflections on his mentor, Judge Barrett.] [On the possibility that the morality gap may be flipped, that young lawyers may provide moral instruction to the old, see the conversation between the young lawyer, Ronny Simmonds and senior partner, Mrs. Stagg, in Louis Auchincloss, The Partners 32-34 (1974)] (ii) Is Service's notion of "frankness" a matter of realism (a virtue) or a verbal disguise for a deeper, underlying cynicism about law and the practice of law (a vice rather than a virtue)? Is Service a realist or a cynic? (6) Service finds that his "anticipated ecstasy" in becoming a partner at Hoyt, Welles & Andrew has resulted in anxiety rather than relief and contentment. (5). (i) What "ecstasy" do you associate with becoming a lawyer? Were there moments of "ecstasy" when you learned you had been accepted to law school? What kind of "ecstasy" did you experience (if any) when you learned you had passed your first law school exams? Or when you got an offer for a summer job? Was it "ecstasy" you experienced when you first realized you might actually someday be a good lawyer? (ii) What happened to Service's "anticipated ecstasy"? (iii) What warnings lie buried in Service's admission that he is "tired" of the practice of law? (5). (7) Service is soon to become a partner in a thirty-six-partner firm. How do you reconcile his insider knowledge, experience, and success with his rather caustic comments about litigation? Service says: "[I]t strikes me that litigation has survived in a world of computers like a Toonerville trolley on the track of a Metroliner. Yet its very survival has made it curiously revered. The tricks and winks and chuckles of the courtroom technique, the voice of thunder, the sly insinuations, the throat clearings, the whispered conferences, the whole hammy vaudeville adored by judge and jury--and by television audiences--has become too sacred to be touched, has even in some crazy way taken the place of our empty churches as the shrine of the oldest American virtue." (8). (i) One law student reader of this comment complained that people don't really understand lawyers and their work and consequently don't understand the ethics of lawyers. The student may be right but the comment has a defensiveness ring to it. Are lawyers and other professionals justified in resisting criticism from outsiders? How should we go about distinguishing the criticism of insiders and outsiders? What moral implications follow the distinction? (ii) In an August 20, 1992 speech, former President George Bush, accepting the Republican Party nomination for reelection, made the following comment about American lawyers: "And I see something happening in our towns and in our neighborhoods. Sharp lawyers are running wild. Doctors are afraid to practice medicine. And some moms and pops won't even coach Little League any more. We must sue each other less, and care for each other more. I am fighting to reform our legal system, to pet an end to crazy lawsuits. And if that means climbing into the ring with the trial lawyers, well, let me just say, Round 1 starts tonight.   "After all, my opponent's campaign is being backed by practically every trial lawyer who ever wore a tasseled loafer. He's not in the ring with them, he's in the tank."   How do you respond to this "outsiders" polemic and his claim that lawyers are a moral drain on society? (8) There are many twists and turns in the argument between Service and Blakelock about how to proceed in the Atlantic-Hylands litigation. (i) Service tells Blakelock that he has "evidence" of a questionable behavior on the part of the opposing firm's CEO which he proposes to use on behalf of his firm's client. Blakelock is incredulous: "You're surely not planning to use it?" (8).   "You've got to be crazy, Bob." (8).   Blakelock has personal knowledge about the CEO of their client's takeover target and explains the questionable behavior as that of a man trying to look after a mentally disabled bother. Service persists in the notion that they should use the material. He isn't persuaded otherwise when Blakelock presents the possibility that use of the material might kill the CEO's brother. (9). [The killing of the mentally dysfunctional brother reminds us of Atticus Finch's admonition that it's a sin to kill a mockingbird and his decision, at the end of To Kill a Mockingbird, not to expose the killing of Bob Ewell by Boo Radley.] Blakelock: "Robert, I can hardly believe my ears. Is it really you talking?" (9). (ii) Service argues that they should use what they have found because the opponents would do so if they were in a similar position. (9). (iii) Blakelock argues against the tactics on they grounds that they simply aren't that "desperate." (9). Blakelock may, implicitly, be reminding Service of the historical and ethical mandate of lawyers as officers of the court, their duty to exercise independent judgment on behalf of their clients, and have the responsibility to determine the means (but not the ends) of the representation. Has Service, in his interpretation of zealousness, forgotten these fundamental premises of lawyer ethics?   (iv) Service responds to Blakelock's adamant refusal to use hardball tactics on behalf of Atlantic Rylands with the argument that while they as lawyers may not be desperate the client is. (9). Service argues that the client's interests--which he refers to as "high stakes"--justifies an attack on the opposing CEO. But should lawyers put their ethics at risk by the morals of desperate clients?   One response is that the morals of lawyers and clients are not really connected at all--lawyers have their morals, clients have theirs. In this view, lawyers don't have to worry about the morals of their clients because their "professional morality" shields them from the morals of bad clients. What problems do you see in such an argument?     Consider the following scenario: You represent the husband in an acrimonious divorce action. Your client, a physician, has no desire to continue supporting his wife in the manner to which she has grown accustomed in the ten years that they have been married. The physician tells you quite explicitly that he expects his wife to get custody of the children, that she is much closer to the children (a girl age four and a boy age six) as his work has resulted in his wife being primarily responsible for the children during their early years. You determine that the physician does not, in fact, want custody of the children. The client is, however, afraid that his wife's outrage over the fact that he is leaving her for a younger woman will result in an effort to make him suffer financially. The client seems particularly worried about his financial interest in a pharmaceutical business that a large supermarket chain is considering for purchase. During the interview the client suggests seeking custody of the children as a "bargaining chip" in the settlement negotiations. He wants to get matters settled with his wife and protect his interest in the pharmaceutical business. The wife knows of her husband's interest in the business but does not know that a potential sale is in the offering. The wife has had a drinking problem but after spending three weeks in a residential alcoholic treatment facility (when the children were two and four) has refrained from drinking. The physician tells you that he knows his wife wants to avoid a custody fight at all cost. [This scenario is from Thomas Shaffer & James R. Elkins, Interviewing and Counseling 415-416 (St. Paul, Minnesota: West Publishing, 2nd ed., 1987)] [Another Custody Blackmail Scenario]   Does the threat of a child custody battle, in view of the physician husband's position that he does not actually want custody, bother you? Is there an issue of morals and ethics lurking here?   Is there any guidance provided in the Model Rules of Professional Conduct for determining whether and how you might respond to this client?   Consider the following observation of Warren Lehman, The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078, 1079, 1091 (1979) [Confronting Instrumentalism]:     "Doubtless many clients, thinking they know what they want--or wishing to appear to know--encourage the lawyer to believe he is consulted solely for a technical expertise, for a knowledge of how to do legal things, for his ability to interpret legal words, or for the objective way he looks at legal and practical outcomes. It is as if the lawyer were being invited to join the client in a conspiracy of silence; the point of the conspiracy is that in silence neither shall question the assumption that the means can be truly separated from the end and that the end is the client's sole problem and solely his. Such an idea of the lawyer's job seems to relieve him of the ethical responsibility that might be his were he to assume a duty to comment on the wisdom or virtue of what his client is about. I do not think the burden of commenting upon the client's purpose can be so easily avoided. The interaction of lawyer and client is a moral event, whether morals are explicitly broached in conversation or not. The question is not whether the lawyer can or ought comment, but what message does he convey.   "The only thing the lawyer can do for his client is be free himself, which means free to be honest in saying exactly what he thinks and feels, to confront himself. It is transcendence for a lawyer to say to a client: 'I am fearful of influencing you unduly in this matter. The tax saving is there. It may be important to you to save the money. If so, by all means defer the gift. But money saving is not everything. One should hardly organize one's life around a revenue code. I will think none the less of you whether you choose to defer or not. Some people, I suspect, may be embarrassed--odd as it may sound--to ignore an apparent financial advantage, for to do so sounds irrational. 'Let me assure you, I would respect most highly a man who will do now what seems right to him now. What sounds rational is not always humanly reasonable....' The important thing about any such message is not that it be calculated to neutralize the legal-rational bias, the legal influence, but that it be honest and not intended to manipulate. Sometimes a side benefit of the speaker's honesty is a shock in the listener that shakes him loose and helps him be free."     (v) Service seems to think that the firm has nothing to lose from using the tactics he advocates. Blakelock claims that their honor is at stake. Is an appeal to honor likely to persuade Service that his proposed tactics are inappropriate? Try it both ways: (a) that it is a good move and might bring Service around to give up the idea of using hardball tactics; and, (b) based on what you know about Service, Blakelock's rhetoric is unlikely to be persuasive.     Is it possible to figure out what effect Blakelock's appeal to honor might have on Service without making a judgment about Service's character?     (vi) Service dismisses Blakelock's appeal to honor with the idea that they checked their honor at the door when they went into the corporate takeover business. (9). How persuasive is such an argument? Does Seymour Wishman make a similar move when he says of his humiliation of Mrs. Lewis: "I had done what a criminal lawyer was supposed to do." [Confessions of a Criminal Lawyer, at 18]. Do lawyers check their honor at the door when they take up corporate takeover work or become criminal lawyers?     (vii) Service argues for using the "dirt" they've dig up on the CEO of the target firm and views the strategy as a key to their success in the case. Blakelock's response: "No! Never! I won't have it." (10). He refers to Service's strategy as a "dubious" advantage. (11). Dubious: [from a Latin word meaning to vacillate; akin to L. duo two]: occasioning doubt; unsettled in opinion; of doubtful promise or uncertain outcome; questionable as to value, quality, or origin. In what sense is the advantage Service seeks a "dubious" one?     (viii) When it appears that Blakelock will reject his proposed "tactics" Service poses a moral dilemma: A lawyer can perform his public duty to a client or maintain his personal honor. I'm simply arguing that our public duty to the client outweights our personal distaste for the tactics that might help us prevail. One might imagine Service saying to himself: now old man, I've got you, got you on the horns of a dilemma, and you can go one way or another, either way, you impale yourself on the horn of the duty you evade. [On ways to respond to such classic dilemmas, see Robert Pirsig, Zen and the Art of Motorcycle Maintenance 229-230 (New York: W.W. Morrow, 1974)]     (ix) Service distinguishes mud-slinging and use of what he calls "legal mud." (10-11). Blakelock rejects the distinction. Service persists. Are distinctions such as this one an inevitable result of legal thinking? [For use of technical legal distinctions in the service of higher moral causes, see Robert Bolt, A Man for All Seasons (New York: Vintage Books, 1962)]     (x) Blakelock says to Service, "Robert, you appall me." (11). What is the difference, if any, between this statement and the following: "Robert, this tactic you propose is appalling." Or this one: "Robert, this argument you have made for this course of action is appalling." Do the rephrased statements imply the former?     (xi) Blakelock expresses concern about his young associate's "amorality." (11). How does Blakelock's diagnosis of Service's morality square with your own perception of Service's character?     (xii) Blakelock tells Service to talk this matter over with his wife and let her be his guide.   Jerry Kennedy, the lawyer protagonist in the George Higgins novel, Kennedy for the Defense (New York: Ballantine, 1980),tells a story about how his wife, Joan (who he calls Mack), says that he's "the classiest sleazy criminal lawyer in Boston." Kennedy knows that Mack is "not flattering" him but doesn't take offense at the depiction. (13).     After listening to her husband talk about one of his clients, a pimp named Captain Midnight, Mack says of her husband's fee in the case: "You shouldn't take that money. . . . That's, that's dirty money. That's blood money." (35). And Kennedy's response?   "It's living off the earnings of a prostitute, I suppose. . . . I know where it came from and I know how it got there and I don't like it either. But you could say that about almost every fee I get--it's somebody's ill-gotten gains. Most of the people I represent are professional criminals. They don't have segregated trust funds they can draw on to pay me. Cadillac Teddy [another of Kennedy's clients] makes his living--some of his living, anyway--stealing cars. Teddy pays me. Teddy pays me with some of the money he gets from stealing cars. Captain Midnight gets his living off of prostitutes. He pays me out of that, which is how I get my living. . . . When you sell a house to somebody [Mack is a real estate broker], do you make sure he's paying for it with clean money? Trace it back to the family fortune and make sure none of it was earned in the slave trade? No, you don't. You sell the guy the house and take your commission, which is what you should do. If he got the down payment by cheating on his taxes, that's his worry, not yours."     "It's not the same thing," Mack said. "It's not the same thing at all."     "No," I said, "it's not. Trouble is, the Constitution says every man's entitled to counsel of his choice. He chooses me, I have my living to consider. The Constitution doesn't say that I can't consider my living. Doesn't say anything about it. Because not eating is unpleasant, I generally take the case. That cash won't keep us healthy and it won't make us happy and it won't keep Heather [Jerry and Mack's daughter] from going haywire and deciding she prefers a Captain Midnight and a life on the street to her stereo set and her own room, to people who love her and some very nice friends. But if she stays on her current course, it'll send her to college and keep her teeth straight and allow her to wear good clothes. If Captain Midnight's little waif had come to my private office for oral surgery the last time he kicked her teeth in, she would've paid for the repairs with money she got from hustling because there's no Blue Cross Blue Shield Master Medical down in the Combat Zone; if she had done that, and I were a doctor, should I have refused to make her well?" (35-36).     Mack changes the subject and doesn't pursue the matter. Kennedy is a street smart lawyer and says enough to put a moralist to thinking. Any ideas about how you might respond to him? (9) Blakelock and Service offer various terms that help "define" their moral stances. Consider the following: desperation (of lawyers and clients) honor (maintained and suspended) duty (to clients and to self) game warfare frankness (honesty) obscenity mud-slinging (i) How do these terms identify the conversation as moral discourse? Or should the conversation be called something else? One student objected to the identification of the conversation as ethics talk. She had been a philosophy major and had never heard such a term in any of her philosophy courses. She didn't like the term ethics any more than she did moral discourse, and argued that they both suffered, in her view, from a fatal flaw--the teacher who used these terms had failed to define them. (ii) If you don't want to call the conversation between Service and Blakelock ethics talk or moral discourse, what would you call it? (10) It becomes evident that both Service and Blakelock bring a good deal of "baggage" with them to the conversation. Indeed, it might be argued that this conversation began long before this discussion about tactics in the Atlantic Rylands case. (i) From your reading of the excerpted conversation, what can you say about what Service and Blakelock bring to this conversation? (ii) Have Service and Blakelock already made up their minds on the matter under discussion before the conversation begins? Is there any chance that either will change the other's mind? If not, what possible purpose could the conversation serve?   (iii) Is it possible that Service and Blakelock's visions of what it means to be a lawyer are grounded in different visions of reality? Consider Blakelock's statement to Service: "I feel almost as if I did not know you." (11). Earlier, Blakelock had said, "Robert, I can hardly believe my ears. Is it really you talking?" (9).   Can you speculate on the broad outlines of their respective world-views? [Note: It is the discovery of a different approach to motorcycle maintenance on the part of his friends that provokes Pirsig's positing of fundamentally different visions of reality which he labels classic and romantic. [See Robert Pirsig, Zen and the Art of Motorcycle Maintenance (1974)] In pursuing this possibility that Service and Blakelock have fundamentally different views of reality, consider the following observation by the philosopher, Stuart Hampshire: "Any actual choice between two ways of life, which comes to a head in a particular conflict of duties, arises from dense personal experience, and as a consequence of a man's particular conditions of life, and of his philosophical beliefs. . . . [M]orality does unalterably have this aspect of commitment to a way of life, even though many persons may never consciously confront such an ultimate choice. . . . A decision in an ultimate conflict may commit the agent to a way of life, which will extend in time indefinitely, as far as he knows, and, as far as he knows, it will close certain possibilities to him for ever, even though they are possibilities that he had thought of as being very highly desirable and valuable. ". . . . To some men [and women] a narrow specialization of achievement presents itself as an overriding moral requirement of some outstanding value, perhaps of aesthetics or of science or religion [or law], to which they are committed to the exclusion of all others; to others the neglect of competing moral claims, which the specialization entails, is repugnant and seems inhuman, and they reject it as impossible from a moral point of view. That there should be both these irreconcilable opinions, and that one mind might not unreasonably oscillate between them, is expected in the common order of experience, and is familiar from episodes in history and in literature. The commitment may emerge from prolonged reflection and from a review of philosophical, religious, political and scientific beliefs; and yet the final intuitions of the right way, as it seems, may be very incompletely explained. Every reflective person has had the experience of oscillating between two possible descriptions of his own conduct, whether it is actual conduct or only envisaged conduct; one correct description makes the conduct acceptable and not to be despised, and the other correct description mentions features of the conduct which make it morally questionable and regrettable. Two competing ways of life, between which a man [or woman] chooses, explicitly or implicitly, may impose different descriptions on the same envisaged conduct, which may emerge as prohibited in virtue of the descriptions relevant to one way of life and as positively required within another way of life. It is not only that the priorities to be aimed at are different in the two ways of life, both in respect of moral claims and of dispositions; but also the questions that one asks about a course of conduct, before evaluating it, will tend to be different." [Hampshire, "Public and Private Morality," in Stuart Hampshire (ed.), Public and Private Morality 23-53, at 47-48 (New York: Cambridge University Press, 1977)] (iv) If Service and Blakelock have different visions of what it means to be a lawyer, are there not also significant areas where they share common ground? Notes On Auchincloss and his fiction, see generally: William Domnarski, Trouble in Paradise:Wall Street Lawyers and the Fiction of Louis Auchincloss, 12 J. Contemporary Law 243 (1987); David Ray Papke, The Writer on Wall Street: An Interview with Louis Auchincloss 5 (3) ALSA F. (1981).     The More the Merrier: Interview with Louis Auchincloss     Course Readings     Home Page