Practical Moral Philosophy for Lawyers

A Real Estate Developer

A lawyer is approached by an urban real estate developer. The developer owns a number of houses in a historical part of the city. The houses have recently been designated as historical landmarks under a state statute which empowers municipalities to create Historical Preservation Boards and after public hearing designate certain properties as historical landmarks. Upon designation as "historical landmarks" the houses can be destroyed or substantially modified only with approval of the Historical Preservation Board. The developer seeks to demolish an entire block of "historical landmark" designated houses to make way for a housing development for middle-income families.

The lawyer, after briefly reviewing the state statute, concludes that there is a chance, but a small one, that the state statute creating the Historical Preservation Boards is unconstitutional because of the way state authority has been delegated to the municipality. State courts have strike down legislative grants of delegated authority but they do so infrequently and in isolated cases.

The legislature is not in session but there is every reason to believe that the legislature would take the earliest opportunity to correct errors a court might find in the statute. At the time of its passage, the historical preservation statute was widely applauded and received strong bipartisan support in the legislature.

As a lawyer, you theorize that there is a small chance (10% at best) of having the statute declared unconstitutional. Such a declaration would probably allow the developer to demolish the buildings and accomplish his goal before a new legislative session could revise the defective statute.

(i) Would you represent the land developer? If so, how would you justify the decision? (Does the decision need justification?)

(ii) Does the decision to represent the developer constitute a moral or ethical problem? If not, how has the moral/ethical problem been averted?

(iii) How does the determination that the decision represents a moral/ethical problem change the situation?

(iv) What arguments can be advanced for refusing to help the real estate developer do what he seeks to do?

Notes

1. Mark Green, The Other Government: The Unseen Power of Washington Lawyers 269 (New York: Crossman Publishers, 1975):

When and by what standards, should a lawyer refuse to represent a particular client? Can the law-for-hire ethic provide just law?

These questions do not particularly trouble many lawyers, who simply assume that a lawyer is an advocate doing everything possible for his client to prevail, period. It hardly requires explanation that attorneys should zealously promote their clients' interests. But less appreciated is the fact that lawyers and law firms have public obligations as trustees of justice. They constitute a "profession" which by self-definition is a "higher-calling" involving more than merely making money. (The word "profession" comes from the Middle English word to "profess," which originally meant taking a religious vow.)

2. Warren Lehman, The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078, 1078, 1079 (1979):

There has been recently a resurgence of interest in how the lawyer serves his client. Much of that interest has been occasioned by the indigestibility of the idea that the lawyer is, as it is said, a hired gun.

* * * *

Clients come to lawyers for help with important decisions in their business and private lives. How do lawyers respond to these requests, and how ought they? 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 purposes can be so easily avoided. The interaction of lawyer and client is a moral event, whether morals are explicitly broached in conversation or not.

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