Practical Moral Philosophy for Lawyers Scene 4: Sadhus We Meet Along the Way     Reading Assignment: Bowen McCoy, The Parable of the Sadhu, 61 Harv. Bus. Rev. 103 (Sept/Oct., 1983) (reprinted, 75 Harv. Bus. Rev. 54 (May/June, 1997) [excerpt] (1) Bowen McCoy says he "walked through a classic moral dilemma." (106). What makes the situation McCoy describes a "classic moral dilemma"? It was, says McCoy, a "real moral dilemma" and elsewhere refers to it as a "basic moral dilemma." Is there any significance in McCoy's repeated, but varied, characterization of his encounter with the sadhu? The characterization of the encounter with the sadhu as a moral dilemma might be challenged. Some law student readers contend that the encounter shouldn't be viewed as a moral dilemma at all, at least they don't see it as one. On what basis might one claim that the encounter described by McCoy is not a moral dilemma? (2) McCoy says that at first he did not see the encounter as presenting a moral problem. It was, rather, his friend and colleague, Stephen, who helped him see the situation as a moral dilemma. (i) How does Stephen see what McCoy has missed? (ii) What does McCoy's account of Stephen's seeing and his not seeing tell us about ethics? We might relate this ethical problem of seeing to contexts and situations closer to home. Consider, for example, the skills of recognition demanded of a law student confronted by a traditional law school examination. A law school examination is about "spotting" issues; if you don't spot (that is, see) the issue and the legal problem it presents, you can't argue the legal rules, cases, and doctrines necessary to set forth a legal solution. Law teachers assume that law school training in "spotting" legal issues on an examination is important because it relates to a lawyer's ability to recognize a client's legal problem (recognition made more difficult by the myriad ways in which the legal issues are obscured and confused by the way they are presented to us). If you respond to a law school examination question without seeing the legal issues, you can be expect an unwelcome grade. The greatest demands on our seeing take place, as in the encounter with the sadhu, where we are under pressure to perform, where the goal is to compete and perform well. We are asked to see and know what to do and given little time to do it; a decision must be made in the most confused of situations. Lawyers, for example, must solve problems by establishing facts (when all the facts cannot be known, or many of the facts are disputed), defining the problem (even as the problem is changing), and developing alternative resolutions (some of which may require considerable sacrifice on the part of the client). In all phases of legal counseling, there is often an element of uncertainty involved. In some moral situations we grope around as if in a fog. If you've ever tried to drive in a heavy fog, you know how difficult it can be. The safest way to proceed is to slow down, drive cautiously, and pray the fog lifts. If the fog is bad enough it may be necessary to pull over to the side of the road and wait till conditions get better before you proceed. Even this simple act of caution can be dangerous--as other drivers may not be able to see your parked vehicle. Some drivers, of course, drive in bad weather conditions as if nothing unusual or demanding caution were involved. In ethics, as in driving, we sometimes act as if road conditions don't matter. We just barrel ahead. We might try a different metaphor/image: When it comes to ethics we are like tribal people who live in a forest clearing. We see best what takes place near the camp-fire light. Beyond lies night's total darkness. Between the light and the darkness there is a transitional zone, a liminal space, in which we see figures and shadows, outlines without detail. Sometimes, in this liminal space, we don't know what we are seeing. In legal practice too, one experiences the security of campfire light, forest darkness, and liminal spaces in which there seems nothing but shadow. Ethical encounters take place in the margins of light and darkness, away from the best lighted spaces. Ethics is the space where we bump into shadows, impulses, old grievances, and unarticulated fears. (3) Bowen McCoy presents us with another "encounter." What is it that makes the kinds of encounters we have been studying so important for a study of lawyer ethics? Compare two additional encouters, the first presented by Monroe Freedman, a law professor, in set forth in the form of a typical law school hypothetical following by Freedman's commentary: [L]et us suppose that you are going about some pressing matter and your arm is suddenly seized by an old man with a long gray beard, a wild look in his eye, and what appears to be an enormous dead bird hanging around his neck, and he immediately launches into a bizarre tale of an improbable adventure at sea. If he is a stranger and you are alone on a poorly lighted street, you may well call the police. If he is a stranger but you decide that he is harmless, you may simply go on to your other responsibilities. If he is a friend or member of your family, you may feel obligated to spend some time listening to the ancient mariner, or even to confer with others as to how to care for him. If you are a psychiatric social worker, you may act in yet some other way, and that action may depend upon whether you are on duty at your place of employment, or hurrying so that you will not be late to a wedding--and in the latter case, your decision may vary depending upon whether the wedding is someone else's or your own. Surely there can be no moral objection to those radically different courses of conduct, or to the fact that they are governed substantially by personal, social, and professional context, that is, by role-differentiation. One simply cannot be expected, in any rational moral system, to react to every stranger in the same way in which one may be obligated to respond to a member of one's family or to a friend. [Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 196 (1978)] Would Freedman's observations be of help to Bowen McCoy as he works through his own encounter? The second encounter is described by, Wayne Brazil, a former law professor, now a Federal magistrate: 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 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 specialty. 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 of 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.... 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. [Wayne Brazil, Reflections on Community, Responsibility, and Legal Education, 9 J. Legal Prof. 93, 93-94 (1984)] What distinguishes Freedman and Brazil's responses to the moral encounters they describe? (4) McCoy notes that "[t]he stories people tell . . . transmit . . . conceptions of what is proper behavior." (107). Thomas Shaffer, has long been a proponent of the proposition that we get our ethics from stories. Ethics, like stories, involves the particularity of persons, places, and communities. We see the particularity of situation, person, and character, worked out most intricately in stories. When a student comes to me and says about a grade she received on her reflective writing: "you are making a judgment based on what I say, or on what I write and you don't know me, you don't know anything about my life"--what she is saying is that her writing (and my grading) are bound up, intricately entwined, enmeshed, and embedded in a story. In order for this student to say what she really means, she would need to tell a story, about herself, her writing, and how this story led to her failure to engage the course, and even the idea of writing reflective papers. (She might, somewhere along the way, want to make a similar inquiry about her teacher's belief in the ability to grade reflective papers and demand a story of this teacher.) I wrote a memorandum to an ethics class once about caring. One student responded: "But how do you know? You can't be responding to me. I put everything I have into this paper. Maybe it doesn't show. But even if it doesn't, I can explain what I was trying to do. I could, if circumstances permitted, help you see you made a mistake in the grade you assigned my work. Even you must recognize the importance of talking about matters such as this. And yet, when it comes time to evaluate our papers, you place us in a situation where we cannot say what we 'really' mean. Who are you to judge? What gives you the right to evaluate my work, my way of talking about ethics?" With these questions the student, quite without realizing it, is pointing to a story that lies deeper than a grade for a law school course. Consider the following stories and how they might bear on the stories we enact in course called Practical Moral Philosophy for Lawyers: the story of what brought you to law school; the story of what keeps a teacher in a place that many students want to leave as soon as possible; the story of legal education; the story of modern education within which the story of legal education is embedded; the story (stories) of a culture in which education, legal and otherwise, is embedded. [On stories, see James R. Elkins, The Stories We Tell Ourselves in Law, 40 J. Legal Educ. 47 (1990)] (5) McCoy, like Seymour Wishman [A Lawyer Turns Reflective] and Robert Service [A Law Office Conversation], tries to explain and justify his action when questioned. "My excuses for my actions include high adrenaline flow, a super-ordinate goal, and a once-in-a-lifetime opportunity. . . ." (106). "On the mountain, none of us but Stephen realize the true dimensions of the situation we were facing." (107-108). He argues that he didn't see the situation. We assume McCoy means that one shouldn't be responsible for what he doesn't see. The reason he didn't see the problem was the stress. (But then aren't we always under stress.) McCoy also puts forth a set of reasons developed, off the mountain, in conversation with Stephen. Each reason seems, at least to me, to be accompanied by a moral argument which I've set forth in italics: "[W]e all cared." (106). There was no moral failure. "I took his pulse and suggested we treat him for hypothermia." (106). I did my part. "What more could we do?" (106). No one should ask us to do more than we did. McCoy found the situation as "ambiguous" and "in a situation like this" (106), there are limits on one's moral responsibility. The situation justified what we did. The sadhu had no right to disrupt our lives. The implication is that the sadhu did not deserve more help than he got. I'm not personally responsible. (Recall Seymour Wishman's claim that there was nothing personal in s humiliation of Mrs. Lewis on cross-examination. I had my "own well-being to worry about." (106). We know that as a matter of human nature, we look after ourselves before we look after others. There were others climbing the mountain at the same time and no one else was willing to help. (106). Our responsibilities to others must be measured by social standards. We cannot be expected to act alone, to set ourselves forth as moral saints. Finally, consider what might be called McCoy's meta-reasons for the response to the sadhu: There was a failure of "moral imagination and vision." (106). McCoy is speaking of himself here in contrast to his friend, Stephen. "Stephen is a committed Quaker with deep moral vision." (104). Stephen sees his obligation to the sadhu as a Christian and as a person "with a Western ethical tradition." (106). How does ethics involve, implicate, and call us to enact, to re-evaluate judged on our deep moral visions? What kind of moral vision does a committed organization man or woman have? What kind of moral vision does a committed Quaker have? Judge Barrett in Seymour Wishman's Confessions of a Criminal Lawyer was a committed Christian and confirmed believer in the law. Wishman suggests that Barrett's religious faith was part of the Judge's character and that his faith was linked to his ability to commit himself to the legal system in a way so as not to be plagued by the kind of ethical problems that Wishman faces. We failed, says McCoy, because of the absence of leadership (107-108). We failed because of the absence of a "collective ethic." (106-108). (6) Despite his efforts to explain what happened, McCoy feels guilty. "Despite my argument," he says, "I felt and continue to feel guilt about the sadhu." (106). McCoy constructs an argument designed to put the encounter with the sadhu behind him. But the arguments don't work. He cannot forget the sadhu. (Is guilt is a function of memory?) McCoy's arguments make good intellectual sense but they don't erase the workings of his conscience. Sometimes, the best arguments we put forth (to ourselves and others) are not convincing even as we make them. When "reasons" become "excuses" our peace of mind is threatened and we are drawn into the moral realm. (7) One reason McCoy's arguments don't work and his conscience is stirred is his friend Stephan's adamant contention that they could and should have done more for the sadhu. Initially, McCoy argues otherwise. The result is a disagreement between McCoy and his friend. Since the ethical problem McCoy describes is a dilemma, it doesn't have an easy or ready-made answer. McCoy and Stephan, like Robert Service and Blanders Blakelock, are of such different worlds that they disagree as to what an appropriate, ethical response would have been. As McCoy puts it, "Reasonable people disagree...." (106). Some of us back away from personal disagreement and conflict. We are afraid of it. Some of us have seen first-hand the results of conflict. We don't know how to deal with conflict so we try to avoid it. We have not learned to see the importance of conflict and how it can be "read." Yet, surprisingly, there are some who live a life enmeshed in conflict and, while they might have it otherwise if they could have a utopia, they are willing to live in and with the conflict because they see it as essential for who they are as a person do that. Some people live in and with conflict and are not harmed or destroyed by it. Those less skilled and knowledge must always seek to avoid conflict whatever the price they must pay. (8) Who is Bowen McCoy? What does who he is have to do with his ethics? He is a church elder, "an ordained ruling elder of the United Presbyterian Church." (103). (Note: This depiction provided by the editors of the Harvard Business Review, one assumes based on biographical information provided to them by McCoy. We do not know whether McCoy personally approved of the use of the information as the editors chose to present it.) He is a businessman with twenty years of business experience, with exposure to "senior levels" of management. He is, he tells us, at least indirectly, a leader and a manager. He is a hiker and climber. He is friend to a a Quaker anthropologist. (103). He is author of the parable. He is a journeyer. McCoy took a six-month sabbatical from his work "to collect" his thoughts and to travel. (103). During the sabbatical he spent three-months hiking and climbing in Nepal. (9) McCoy says, in concluding his parable: "For each of us the sadhu lives." (108). In what sense is this true? (10) Seymour Wishman says, after his encounter with Mrs. Lewis: "I sense that my distress was not just a personal matter but revealed some of the painful moral and emotional dilemmas of my profession." (Confessions of a Criminal Lawyer, at 18). In what sense is McCoy's parable of the sadhu a parable for lawyers? (i) McCoy: "During the Nepal hike, something occurred that had a powerful impact on my thinking about corporate ethics. Although some might argue that the experience has no relevance to business, it was a situation in which a basic ethical dilemma suddenly intruded into the lives of a group of individuals. How the group responded I think holds a lesson for all organizations no matter how defined." (103). How is the dilemma involving the sadhu a "parallel to business situations"? (106). (iii) Robert G. Pipston, Vice President of Human Resources, at Ingersoll-Rand Company, in a letter to the editor of the Harvard Business Review, suggested that while the article was of "interest" he was not sure "of its relevance to business ethics." It was not relevant, Mr. Pipston argued, because "[e]ach business decision is unique unto itself, and in these fast-changing times it is very difficult to prejudge individual versus group ethics." [Letter to the Editor, 61 Harv. Bus. Rev. 198-199 (November-December, 1983)] How do you respond to Mr. Pipston's argument that McCoy's parable is not relevant to business ethics? That our times are so "fast-changing" that we simply can't "prejudge" an issue like "individual versus group ethics"? (iii) How is the parable of the sadhu reflective of your situation as a law student and a student of lawyer ethics? Consider the following: you have problems (legal and moral) thrust upon you (you have not, at least in any direct way, chosen to reflect on the particular problems and concerns you are asked to address); being a student means that you, like McCoy, are on sabbatical from the work that awaits you (I offer this with full recognition that law school is very real work and that you may not feel like you are on sabbatical at all!); what happens in law school, like what happened to McCoy on the mountain in Nepal, is going to have "a powerful impact" on your thinking; many of the dilemmas you face as a student of law and as a lawyer are dilemmas confronted as a member of a group (few ethical dilemmas present themselves to hermits); like McCoy and Stephan, your education as a law student takes place by way of discussion and debate; in law school you are routinely confronted with responsibility, and how you will live out the responsibility you take on; as a group, we lawyers and students of law are like McCoy's climbing group, we have a problem: We have "no process for developing a consensus." (107). We act "instinctively as individuals." (107). law students, as a group, present a "cross-cultural...layer of complexity." (107). law students are under stress. Climbing the law school mountain is no bowl of cherries. While many get throught law school, far fewer can actually make it to the top of the mountain, and for all law school climbers, there are difficulties and dangers. "The word 'ethics' turns off many and confuses more." (107). One cannot miss the disdain for ethics in the legal profession. (11) McCoy argues that the "lesson" of the sadhu lies in understanding how the "individual" ethics failed (both him and Stephan) in their response to the sadhu because they had no leader and no collective ethic to guide them in making a decision. (107-108). What concerns might a reader have about this conclusion? (12) One reader, a business school professor, pointed out that McCoy's parable is an analog of another well-known parable, the parable of the Good Samaritan. [William F. May, Letter to the Editor, 61 Harv. Bus. Rev. 200 (November/December, 1983)]. Elizabeth Wolgast, in The Grammer of Justice retells the Good Samaritan story from the Bible: In the Gospel according to Luke, the story of the Good Samaritan goes like this: "A certain man went down from Jerusalem to Jericho, and fell among thieves, who also stripped and wounded him.... And it happened that a priest went down the same way...[and] a Levite.... [The countrymen of the wounded man did not respond or offer help.] But a certain Samaritan...came near him; and seeing him, was moved with compassion. This traveling Samaritan stopped and bound the stranger's wounds, set him on his own beast, and took him to an inn. The following morning he instructed the innkeeper to keep the wounded man and said he would pay for his further care when he came that way again." [Elizabeth H. Wolgast, The Grammar of Justice 77-78 (Ithaca, New York: Cornell University Press, 1987) (Quoting Luke 10:30-37, King James Version, Bible)] (13) Gary Gilmore was tried and convicted in Utah for murdering a hotel clerk and a service station attendant during the course of two separate robberies. He was given the death penalty but opposed efforts of his attorneys to block the execution. The following excerpt is from Norman Mailer, The Executioner's Song 490, 513-14 (1979): Gilmore said [to his lawyers], "Now, don't I have the right to die?". . . . Gary told them of his belief that he had been executed once before, in eighteenth-century England. He said, "I feel I've been here before. There is some crime from my past." He got quiet, and said, "I feel I have to atone for the thing I did then." Esplin [one of the lawyers] couldn't help thinking that this stuff about eighteenth-century England would sure have made a difference with the psychiatrists if they had heard it. Gilmore now began to say that his life wouldn't end with this life. He would still be in existence after he was dead. It all seemed part of a logical discussion. Esplin finally said, "Gary, we can see your point of view, but we still feel duty bound to go ahead on that appeal." When Gary said again, "What can I do about it?" Snyder answered, "Well, I don't know." Gary then said, "Can I fire you?" Esplin said, "Gary, we'll make the Judge aware that you want to can us, but we're going to file anyway." * * * * On the 3rd of November, Esplin got a letter from Gary. It read: "Mike, butt out. Quit fucking around with my life. You're fired." Despite being dismissed, the two defense attorneys later Wednesday filed a notice of appeal in their names. . . . They said it was "in the best interest" of the defendant. Does your reading of McCoy's parable of the sadhu have any bearing on your thoughts about the way Gary Gilmore's lawyers responded to his plea to let him die in the electric chair? (14) McCoy says of his friend, Stephan, that he had a "deep moral vision." (104). What does it mean to have such a vision? (15) We have found, lurking in the background (in Seymour Wishman's description of the revered Judge Barrett and in McCoy's reference to the moral vision of his Quaker friend, Stephan), that moral vision and character are related to in some way to religion. What do you make of this connnection? | Commentary | Notes 1. Further Reading: Bowen H. McCoy, When Do We Take a Stand?, 75 Harv. Bus. Rev. 60 (May/June, 1997); Luke 10:25-37 (King James Version of the Bible); Paul B. Rasor, A Law Teacher Looks at the Good Samaritan Story, 31 Washburn L. J. 71 (1991); James Ratcliffe (ed.), The Good Samaritan and the Law (Garden City, New York: Anchor Books, 1966) 2. Good Samaritan Story Web Resources: [The Good Samaritan: Parable of Renewal] 3. On Parables: A Kafka Parable and Web Resources on Parables 4. On Moral Vision (and Religion): Symposium: Rediscovering the Role of Religion in the Lives of Lawyers and Those They Represent, 26 Fordham Urb. L.J. 821-1200 (1999). 5. "The Parable of the Sadhu" is found on the reading list of other teachers of ethics: [Business Ethics, Milligan College] [Ethics and Managerial Choice, Birmingham Southern College] [Business Ethics, Department of Philosophy, Scranton University] [Leadership and Responsibility, Sellinger School of Business and Management, Loyola College, Maryland] [Business Ethics, Department of Management, Marketing, and Human Resource Management, Brock University]       Business Ethics Resources on WWW Practical Ethics Through Philosophy     Home Page