Practical Moral Philosophy for Lawyers

Confronting Instrumentalism

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

(1) Do you agree with Warren Lehman that "[t]he interaction of lawyer and client is a moral event, whether morals are explicitly broached in conversation or not"? [1079] [The contention is worked out more thoroughly in Thomas Shaffer, The Practice of Law as Moral Discourse, 55 Notre Dame Lawyer 231 (1979)]

(2) "We are," in dealing with what lawyers do on behalf of their clients, Lehman contends, "dealing with the most difficult problems of the interior and virtuous life," problems that "do not resolve under the assault of argument." [1078] What does it mean to say, as Lehman does, that these problems "do not resolve under the assault of argument"? (Does Lehman have in mind the kind of impasse we saw in the conversation between Robert Service and Blanders Blakelock?) If we are dealing with problems that do not lend themselves to the "assault of argument" how are we to proceed?

(3) Lehman suggests that the present or absence of what might be called moral discourse in the attorney-client relationship may be a major factor in how we approach ethics. This is how Lehman addresses the matter:

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. . . . [1079]

(4) Lehman uses the term instrumentalism as a label for the view that "the lawyer is an instrument of his client's purposes." [1079]

(i) Did you, or does anyone, come to law school with the idea that they are going to be trained to be another person's instrument? We don't hear, or at least I have never heard, a law student claim to subscribe to "instrumentalism" as a philosophy.

(ii) Is instrumentalism and the image of the lawyer as a technician being actively presented to you as part of your training as a lawyer? Is it the orientation you expect to dominate your life as a lawyer?

(iii) Lehman refers to instrumentalism as a "psychic trap." [1083] How does "instrumentalism" become a trap?

(iv) Lehman argues that instrumentalism fails as a moral stance. How do you respond to the following reasons Lehman advances for the failure of instrumentalism?

• It requires the rational self be split off from the feeling self.
  
  
• It ignores the difference between wants and needs.
  
  
• It "fails . . . because the lawyer cannot avoid being a party to the client's decision. . . ." Lehman contends that "the client has no decision before he sees his lawyer. . . . It is in large measure up to the lawyer to define what the relation is going to be. It is his ethical responsibility." [1080]

(5) Lehman argues that what a client asks a lawyer to do cannot always be treated as a clear-cut expression of what is in the client's self-interest. "We say we want justice when we want love. We say we were treated illegally when we hurt. We insist upon our rights when we have been snubbed or cut. We want money when we feel impotent. . . . It may well be that in a given situation a lawyer can do no more than accept a particular client's statement of his desires. But that is not because he ought to be his client's tool or because he must be." [1081]

(6) Lehman argues that instrumentalism is not "a necessary reality." [1082]

(i) Yet, for some, instrumentalism appears to be something akin to a natural state of affairs.

(ii) For others, the idea of subscribing to instrumentalism is anthema to the ideals that bring them to law, indeed, it is quite repugnant. One might imagine, as Lehman tries to do, a lawyer who refuses to adopt an instrumental view of their work. E.g., Lehman suggests that "[t]he 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." [1091] A lawyer who takes her freedom seriously cannot be an instrumentalist.

(iii) Lehman argues that instrumentalism is not a "necessary reality" because lawyers do make judgments and express concerns about "the wisdom of a client's expressed desires" and clients can (and do) change their minds. [1082] How do lawyers and clients engage each other in a way that makes it possible for each to change the other's mind? (Note: Blanders Blakelock's failure to change Robert Service's mind suggest that we are more and less open to change, but that the assumption that clients are not open to change is as much a distortion of reality as is the belief that everyone should be willing to adopt the most rational/moral views available to them.)

Instrumentalism in lawyering arises from the ehtical assumptions we make about clients. Kenny Hegland (University of Arizona) in an unpublished manuscript points out that:

It may well be that the whole "hired gun" debate, wherein the client makes some immoral and outrageous demand upon the lawyer, is somewhat beside the point. The more common problem in practice is where the lawyer assumes that the client wants something immoral and outrageous and, with a shrug, goes about doing it. That is, lawyers generally assume that their clients are interested only in their short term financial gain or, in the case of both civil and criminal defendants, escaping all responsibility. One clear example--when a criminal suspect confesses to police, lawyers are apt to believe that it must be because he wasn't properly warned--no rational or same person would confess. Never mind the great human truths of the need to communicate, the need to make atonement.

One effect of the lawyer imputing standardized ends to clients is that often clients adopt them because it is "expected of them." There are moral implications as well.

When the lawyer assumes the client's ends, no one need take responsibility for any harm inflicted. Take the brutal cross-examination. The lawyer assumes that the client wants to win at all costs, including that of devastating opposing witnesses. Conducting the cross, inflicting the harm, the lawyer is just 'doing her job,' following her client's 'wishes.' As for the client, why the client just sits there, watching. Hence, a human is harmed without anyone ever saying 'I choose to harm that individual.'

(7) Lehman argues that instrumentalism is attractive because of the difficulty, in some cases the fear, of talking with clients about moral and ethical issues. "We can attempt to rationalize our engaging upon a distasteful course chosen by a client on the ground that what is to be done is the client's decision and we are but tools. That way we try to persuade ourselves that internal discomforts can be safely ignored." Instrumentalism is a "psychic trap" when it "offers us an argument with which to bludgeon such feelings as aversion or sympathy, which might lead us to respond as humans to our clients' predicaments." [1083]

(i) What personal experience have you had with the psychological and social sources of instrumentalism?

(ii) Lehman observes that it is "difficult to broach with the client a touchy moral or emotional issue." [1082] What makes these discussions touchy? Have there been moments in our class discussion in which you have detected touchiness?

(iii) Lehman would have us approach these discussions about ethical issues by trying "to discover in each case what I ought to do" and then being willing to admit that "I recognize that, like every other human being, I cannot do everything." We cannot expect to find comfort in "introspection." [1082-1083]

(8) Lehman also explores utilitarianism as a source of of instrumental thinking in lawyer ethics. Utilitarianism holds that virtue is based on utility, and that virtuous conduct is the conduct that promotes the greatest happiness of the greatest number of persons. Utilitarianism, for some students of legal ethics, supports the argument that zealous representation means that anything goes so long as it within the law and not deemed to be a violation of the ethical rules. Playing "hard ball" has "utility." The adversary system of justice, with all its warts, results in the greatest benefit, all things considered. The beauty of this argument is that it tends to ignore, or discount, wrongdoing and injustice. In this view, it all comes out in the ethical wash. Morality is a composite of what we do, in the long run, and is not determined on the basis of particular choices. (Utility looks to the future).

Bernard Williams, in Morality: An Introduction to Ethics 91-92 (New York: Harper Torchbook, 1972), offers several reasons why utilitarianism is attractive: (i) It does not require appeal to transcendental or religious sources. If God is dead, your church membership lapsed, and you do not have an ongoing religious practice of any sort, and you still see the need for a moral outlook, utilitarianism is just the ticket. (ii) We all want to be happy and utilitarianism promotes happiness. (Note: Williams does suggest that there is a "notorious problem" with utilitarianism in the "transition from a supposedly indisputable aim of seeking one's own happiness, to a more disputable aim of seeking other people's happiness...with minimum requirements...[of] a willingness to consider other people's wants as well as one's own. . . ." (iii) "Its third attraction is that moral issues can, in principle, be determined by empirical calculation, of consequences. Moral thought becomes empirical, and on questions of public policy, a matter of social science. . . . All moral obscurity becomes a matter of technical limitations." (iv) "Fourth, utilitarianism provides a common currency of moral thought: the different concerns of different parties, and the different sorts of claims acting on one party, can all be cashed (in principle) in terms of happiness."

(i) Do you consider yourself a utilitarian? If so, can you describe the philosophy in a way that would make it attractive to others (as you yourself find it attractive)?

(ii) If you consider yourself a utilitarian, then how do you respond to Lehman's critique of utilitarianism? Lehman argues that: (i) Utilitarianism places a moral veneer over our silence about ethics. "The practical utilitarian...thinks he can have it both ways; he has a moral guide to behavior without the taint of being a moralist or the possibility of ever discomfiting anyone. He is supremely reasonable. But once again, the price of self-delusion can be high." [1085]

(iii) Utilitarianism "has such a seductive, sweetly reasonable character" because "our most serious moral qualms concern present behavior rather than outcomes. Utilitarianism appears to avoid the controversies about the ethical character of present acts by placing the facts relevant for decisions in a future where only the outcomes, and no longer the acts, are in question. Present acts are neutral save in their consequences. We need never ask if we are doing right, so long as we survive the judgment of history. It is a Faustian kind of promise." [1092]

(9) How is utilitarianism woven into the fabric of legal education? Consider the following:

Professor: Brown, what's a trial?

Brown: An adversary proceeding.

Professor: For what purpose?

Brown: To discover the truth. (There is silence in large class for five seconds, then laughter.)

Professor: (after waiting just long enough for the laughter to help him make his point) Who cares what truth is?

Brown: I care. (Loud laughter.)

Professor: Well, in your conversations with God, you can take these questions further. (Pause. Then to another student). Smith, what's the purpose of a trial?

[From Thomas Shaffer, "Moral Moments in Law School", in Luther Hodges (ed.), Social Responsibility, Law, Medicine 32, 33-34 (1978)(vol.4)(reprinted in Thomas Shaffer, On Being a Christian Lawyer: Law for the Innocent 165-176 (1981)]

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