Vignette #1: A Developer and Historic Homes

Vignette #2: Disinheriting a Daughter

Vignette #3: A Custody Case

Vignette #4: Aggressive Landlords

Vignette #5: Good Mothers

Vignette #6: A Small Businessman

Vignette #7: Seeking Delay for an Insurance Company

Vignette #8: Representing South African Airways During Apartheid

Applicable Rules of Professional Ethics: Checking the Vignettes Against the Rules

Notes: Part I

(1) Irving Younger, Commentary, 1 Geo. J. Legal Ethics 285, 285, 286, 287-288 (1987):

Is there a trial lawyer anywhere who has not been asked whether it is justifiable to represent an evil client? The question goes as follows: "How do you accommodate your own moral sense with vigorous advocacy on behalf of someone or something loathsome?"

The answer is that no accommodation is necessary. A lawyer's own moral sense requires nothing else but vigorous advocacy, without regard to the moral quality of the client or the cause. This exigent moral sense originates in the lawyer's decision to be a professional advocate.

* * * *

All of us . . . from time to time need the skill of one or the other of the three professions. I am sick: I want health. I am troubled: I want tranquility. I have a case: I want to be heard. The physician, the cleric, and the lawyer are trained to help me accomplish my desires, but should they stop to ask whether it is good that it be done--whether my body deserves the healing, my soul the calming, my case the hearing--they will never find a sure answer and, in their doubt, lose the name of action.

. . . . Each of the professions therefore demands of its members a commitment that will permit them to do the job for which they have been trained. It is a commitment of the greatest difficulty, and its difficulty lies precisely in the acknowledgment that, since one's own moral sense may impede professional practice, a professional practitioner must put aside his own moral sense. It is, accordingly, a commitment to make no moral judgments.

The lawyer's commitment is embodied in no single document, but inheres in the lawyer's obligation to be an advocate for any client and cause, regardless of the lawyer's own moral judgment, because the question whether the client or cause deserves a hearing is too profound for mankind to answer.

. . . . The moral basis of advocacy lies in the lawyer's obligation to speak for anyone or anything, but always consistently with the lawyer's own honor, for the imposition of a moral obligation presupposes some sort of moral worth in the subject of the obligation. Checks and balances figure in the life of the spirit, much as they do in the life of our government. Hence every duty has a limit, every imperative a counterpoise. It is the advocate's professional duty to undertake any case for any client, but personal honor compels the drawing of a line beyond which the lawyer will not go in supporting the client's cause. Advocacy, the advocate might be heard to say, is not seduction.

(i) How does Irving Younger, in the statement above, try to ameliorate the danger implicit in the position he advances?

(ii) Do you agree that a professional virtue like zealous representation, viewed as an absolute principle, can be transmuted into a vice? (Virtue is always in danger of become a vice: caring becomes paternalism, courage becomes recklessness, caution becomes willed indifference to the need for change, progress destroys tradition, tolerance becomes apathy.)

(2) What ethic or ethics does a lawyer need other than adversarial zeal? Consider James Boyd White's admonition that we "begin to think in more than one language, more than one voice, and thus to locate the particular practices of a discourse in the larger context of the rest of what we know and are." [James Boyd White, Economics and Law: Two Cultures With Tension, 54 Tenn. L. Rev. 161, 199 (1986)]. We move from one discourse to another, according to White, because "all languages are limited" and no single language "tells the truth." [201]. White argues that we have an obligation "to try to recognize what [a language in use] leaves out, to point to the silence that surrounds it--to acknowledge the terrible incompleteness of all speech, and thus to leave oneself open to hearing other truths, in other languages." [Id.]. Karl Jaspers, the philosopher, observes that "[t]hrough thousands of years the warring schools [of philosophy] have been unable to demonstrate the truth of any one of them. In each view some truth is manifested, namely an attitude and a method of inquiry which teach men to see something in the world. But each one becomes false when it lays claim to exclusiveness and strives to explain all existence." [Karl Jaspers, Way to Wisdom 29 (New Haven: Yale University Press, 1951)]

(3) Charles Fried, in "The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relationship," 85 Yale L. J. 1060 (1976) poses the relevant question: "[W]hat of the initial choice of a client?" His response: "[T]he individual lawyer does a morally worthy thing whomever he serves. . . . In this he is like the doctor."

(i) Do you agree that lawyers are like doctors in the sense Fried claims? Irving Young, who would probably agree with Fried implies the physician/lawyer analogy is relevant when he asks: "The physician is a master of medicine who this afternoon saved a life. But the life is the life of a Hitler. Was he worth saving? Would it not have been better to let him die?" Irving Younger, Commentary, 1 Geo. J. Legal Ethics 285 (1987)(Younger goes on to make more directly his point about physicians and lawyers: "The physician, the cleric, and the lawyer are trained to help me accomplish my desires, but should they stop to ask whether it is good that it be done--whether my body deserves the healing, my soul the calming, my case the hearing--they will never find a sure answer and, in their doubt, lose the name of action.")(p. 286). Seymour Wishman, in Confessions of a Criminal Lawyer, rejects the analogy. When asked early in his career as a defense lawyer whether he felt responsible for what criminals do when he helped them "get off," answered, "very little, as about as much as a doctor who repairs the broken finger of a killer." Wishman characterizes his answer as flippant, an answer on which he no longer places any faith. [Seymour Wishman, Confessions of a Criminal Lawyer 17 (New York: Penguin, 1982)]

(ii) Fried uses the analogy of friendship and the special moral duties we owe friends (in contrast to the duties we might owe strangers and sadhus) to argue that lawyers can do for client/friend what outsiders would consider morally objectionable. What concerns might be posed to the use of this notion that the lawyer who helps a client do what the client wants is acting in the same moral sense as a friend? [For a response to Fried's lawyer as friend metaphor, see Edward Dauer & Arthur Leff, Correspondence, 85 Yale L. J. 573 (1977); Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 196-199 (1978)]

(iii) Fried goes on to argue that it is the principle of liberty that immunizes lawyers from moral condemnation for representing clients who push the adversarial ethic (and law) to the limits. "Just as the principle of liberty leaves one morally free to choose a profession according to inclination, so within the profession it leaves one free to organize his life according to inclination." The lawyer's liberty to take up a practice and clients of her choice " is an aspect of the moral liberty of self to enter into personal relations freely."

Eugene Rostow in The Ideal in Law 157, 148 (1978) provides one response to Fried's argument:

In many instances, we have become so identified with our clients, so much a part of their daily lives, that we have lost a part of our professional freedom and our professional standing, both in our own minds and in public opinion. Too many lawyers find themselves in situations of conflict between their professional convictions and their continuing connections with their clients. We all know many occasions, in business, in labor, and in government, comparable to the moment when President Franklin Roosevelt turned on a distinguished lawyer who held a high post in his first Administration and had just given him some unpalatable advice. In a state of considerable irritation the President said, "When I want to do something, I expect my lawyers to tell me how it can be done, and not why it can't be done."

* * * *

We are all familiar with the fact that most lawyers today, even in smaller communities, are no longer detached professional gladiators of the bar, whose services, in court or out of it, are available to any litigant. The inevitability of specialization, and the decline in the relative importance of litigation in lawyers' work, have had their impact. And I suspect that the romantic vision of the old-fashioned barrister as a knight in shining armor, ready to try any lance offered to him, was never quite so true in the United States as we like to think. Even in Lincoln's time, in the fellowship of circuit riders to which we look back with nostalgia, there were railroad lawyers and those who fought the railroads. . . .

How should Fried's ideal of liberty be viewed in light of Rostow portrayal of liberty in action?

(iv) Fried rejects the idea of the lawyer as a "high priest" of justice and contends that in a democratic society "justice has no anointed priests. Every citizen has the same duty to work for the establishment of just institutions, and the lawyer has no special moral responsibilities in that regard."

Do you agree with Fried's contention that lawyers have no special moral responsibilities to "work for the establishment of just institutions"? How can Fried's position be squared with the sentiments expressed in the Preface to the Rules of Professional Conduct? Or with the general sense that professionals assume higher levels of responsibility as a quid pro quo for the power they acquire from society when they become professionals?

Notes: Part II

1. For support of Charles Fried's position, on different grounds, see Stephen Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem and Some Possibilities, 1986 Amer. B. Found. Res. J. 613.

Other commentators, including Monroe Freedman, a proponent of the notion that lawyers have an ethical responsibility to push the adversarial ethic to its limits, contend, contrary to Fried, that a lawyer's choice of clients "can properly be subjected to the moral scrutiny and criticism of others. . . ." Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 199 (1978). Freedman, in his treatise, Understanding Lawyers' Ethics 68 (1990) notes that:

The lawyer's decision to take or to reject a client is a moral decision for which the lawyer can properly be held morally accountable. Indeed, there are few decisions that a lawyer makes that are more significantly moral than wehther she will dedicate her intellect, training, and skills to a particular client or she will dedicate her intellect, training, and skills to a particular client or cause.

2. If you want to be a lawyer, and you don't want to be confronted with concerns about the ethics of zealousness, then you can just assume that lawyers have a well-compensated, at times unpleasant job, of doing what clients want done. Consider the propositions implied in this argument: (i) lawyering is a job; (ii) the propriety of a what client wants is measured by whether it is legally permitted; (iii) lawyers can take any client that walks through the door without moral qualms; (iv) the work of lawyering can be compartmentalized so the morals of the client have no bearing on the morals of the lawyer, and (v) an expectation that the morals of neither lawyer or client will be a factor in the representation.

Attempts to resist the operative conventions of lawyer ethics meets with resistance. There is often an appeal to the necessities of the Real World. Legal ethics, we are warned, "cannot be effective if addressed to a world of ideals and angels. It must address our very real world of imperfect justice, hard-headed and hard-working attorneys, and difficult moral choices." [Edward J. Eberle, Toward Moral Responsibility in Lawyering: Further Thoughts on the Deontological Model of Legal Ethics, 64 St. John's L.Rev. 1,5 (1989)]

Many assertions about the Real World necessity distorts reality even as it purports to faithfully represent it. E.g., lawyers don't do everything clients might want them to do and some clients undoubtedly caution their lawyers to do less than what the lawyer might want to do. [See e.g., the client in "Equitable Awards," in Louis Auchincloss, Narcissa and Other Tales 52-70 (Boston: Houghton Mifflin Co., 1983)] [There is of course disputes between lawyers about what constitutes necessity. See e.g., the discussion between the lawyers in Louis Auchincloss's Diary of a Yuppie]

Lawyers, for practical, financial, and ethical reasons, do not represent every potential client that seeks out their services. For example, lawyers often turn down clients they don't feel competent to represent, clients that require attention that would significantly detract them from the representation of other valued clients, or clients they don't want to be associated with. Some lawyers do not take clients they don't trust. Established lawyers do not take clients they dislike. Yet, the notion persists, that it is a lawyer's job to represent clients and make no moral judgment about what the client wants to do (ignoring consequences, social harm, personal repugnance). While the notion may still persist, it remains, as a moral matter, "simple-minded." One reason we can talk about our "jobs" as lawyers the way we do is because "traditions of the profession do provide rationalizations for those who would abandon their own judgment" to that of the firm or some imagined profession. [Edwin H. Greenebaum, Attorney's Problems in Making Ethical Decisions, 52 Ind. L. J. 627, 630 (1977).]. Greenebaum goes on to point out that "[w]hatever rationalizations lawyers accept...there will remain that portion of their personalities which holds to notions of goodness which were learned as children growing up in a family and in the general community." [Id.] If Greenebaum is right, and I assume he is, then the claim "I was only doing my job" must mean that doing the job affirms a part of the self that associates a job with the portion of personality that is good.

It is one thing to admit that our work sometimes demands things of us we would rather than do, still another to take "professional pride" in the dirty work we do.

The adversarial ethic that holds that the morals of the client can be walled-off from the morals of the lawyer (and the lawyer's moral stance walled off from the client) becomes an irrefutable description of a Real World adversarial ethic of Necessity. When we argue what it is necessary for lawyers to do we partake of an adversarial mythos that seems so intuitively "right" that it is no longer subject to analysis.

This claim that lawyers must, always, represent all clients without regard to their morals, causes, effects, is presented to us as a matter of necessity writ large--Necessity. Necessity brooks no argument. There is a tendency on the part of many lawyers and students of law to barricade themselves against moral concerns in a psychic fortress they call Necessity. Some cling to unreflective ideas about the adversarial ethic even more tenaciously after seeing how the stance misrepresents what lawyers actually do in the Real World. Ironically, many law students do not know any real--or for that matter fictional lawyers--apart from the lawyers they see represented on television, when they begin law school and undertake a study of law and talk about the Real World.

If we are not careful we can let conventional notions about lawyers, their "job," and Necessity, make us think we are being realistic when we are being dogmatic. An appeal to the Real World "logic" of an adversarial ethic bounded only by legal constraints carries the name of realism but is actually a rather dreamy notion that we can talk ourselves into being the kind of tough, "kick ass" lawyer who everyone knows to fear.

When we confront moral choices defended in the name of Necessity we learn that some lawyers don't feel all that secure with Necessity as a moral justification for what they do. There is no Necessity that demands that we cash in our moral character to be lawyers. Necessity is simply another rhetorical move that justifies a sense of self, profession, and world that cannot admit that we profit by the convenience, self-interest, and failures of imagination and character that accompany an unreflective adversarial ethic. It is we and no the "job" who transform zealousness into zealotry. We become zealots without thinking about it, by participating in an ethos that constitutes a closed loop, closed to the complications of criticism and contrasting ethical perspectives.

The "I'll take any client who walks in the door and do whatever the law permits" for that client is not an ethical notion held by every lawyer or every law teacher or every law student. In fact, few lawyers take every client who walks through the door. But the notion is held by enough lawyers, law teachers, and law students that it cannot be ignored. It is a notion at the heart of what is most peculiar about lawyer ethics, a notion that works its way into the lives of enough lawyers that it becomes the basis of a professional morality distinguished from ordinary morality. The ready acceptance of an ethic of zealousness limited only by legal boundaries we represent a deep, prelogical, prelegal need to imagine for ourselves a simplified amoral universe. [See Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975-76). On the operationalist, rationalist, modernist, and post-modernist cognitive stances that find their way into our world views, see Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 Tex. L. Rev. 1195 (1989)]

One can imagine a young woman or young man saying: "I have come a long way to get here to what I assumed would be an exalted position. I want to be a lawyer not a social worker. I did not come to law to labor under the double burden of being a skilled, tough, lawyer, and be held to task for the morals of the clients I serve. No lawyer should be held to such an ethical burden. There is no reason to believe that lawyers have, or should be expected to have, more character than anyone else in our society." It is a simple matter to claim, more difficult to demonstrate, how an activated sense of ordinary morality and the ethical sensibilities we bring with us to law can be used to curb our zeal for adversarialism. The difficulty is compounded by the fact that it is one sense of ordinary morality (the habit zealousness) we are asked to set against another ordinary morality (keeping an eye on the zeal devoted to any single virtue). The desire to test the limits of our zeal may itself be an ordinary feature of everyday life, but no more or less so than the moral notion that zealousness, as every virtue, has its limits.

How many of us want to be legal zealots, who live compartmentalized lives, lives that preclude the possibility of being, in some small way like Atticus Finch? Do we really want to be what we turn out to be when our moral imaginations are captured by prosaic conventions of legal practice? Many of us, apparently, do. Compartmentalization makes it easier to get through the day. Others, however, covertly, secretly, set out to lead a worthy life when they become lawyers. Is it no longer possible to emulate Atticus Finch, being the same person in town as a lawyer as we are at home with our family? Are we bound to lead morally compartmentalized lives?

The task of those who explore lawyer ethics is to excavate the cognitive predispositions and cultural attitudes that make the amoralist approach to zealousness so attractive and so troubling. It is a stance, attached at a deep psychological level, to images that shape who we are, and how we make a place for ourselves in the world with the skills and knowledge we develop as lawyers. It is in the conversation ethics that the images underlying conventional notions of lawyer ethics are called forth and called into question. It is our inquiry into lawyer ethics that puts us to work re-imagining the images of an adversarial ethic that transforms zealousness into zealotry.

(1) Sylvia Law, "Afterword: The Purpose of Professional Education," in Stephen Gillers (ed.), Looking at Law School 205, 212 (1977):

In deciding whom you are going to work for, particularly in a period of history in which there are real and sharp divisions of values in a society, you must make a personal moral choice. Lawyers and nonlawyers alike should have some sort of philosophy of life and should work to make their life have meaning within that philosophy. . . . [N]either professional education nor professional ethics provides any answer to the question "To what ends should I use my legal skills?" Indeed, the prevalent view of legal ethics would seem to say, since everyone is entitled to as much legal talent as they can buy, you can work for anyone you choose and meet your obligation to as a professional. Even if this is all that is required of you as a professional, I would submit that we all have an obligation to ourselves and to each other to try to make sense of our lives in deciding to what ends we will use our legal skills. In becoming a professional, we do not stop being human. As humans we have some responsibility to work toward objectives that seem to us useful.

(2) Mark Green, The Other Government: The Unseen Power of Washington Lawyers 211 (New York: Crossman Publishers, 1975):

By training, lawyers are poorly equipped to make personal or political judgments about the injustice of a client's position. Law schools and the legal profession stress rigorous problem-solving within a defined issue rather than more normative analyses about the effect of competing social policies. So a law-school class may spend days mulling over the concept of "easement" in property law, but spend no time assaying the social deficiencies of the probate system, a problem perceived as not technical. "You dedicate yourself to a concept of craftsmanship; craftsmanship becomes all," recalls activist lawyer John Flynn of his four years with a large law firm. "You do what law school tells you that you are supposed to do, and don't worry about what it is you are doing. You learn to do it very well."

And by tradition, lawyers assume that almost anything goes in legal combat -- as the judge or jury decides the winner. There is a strict compartmentalization between personal belief and professional advocacy. Lawyers view themselves as did Harry Caul in Francis Coppola's "The Conversation." Harry bugged people for a fee. He consistently maintained that he was a mere technician hired to do a job but not to get involved in what happened after he delivered the goods until the day he realized an assignment might lead to the deaths of two innocent people. Harry, like many lawyers, lacked a sense of consequence.

And like Harry, lawyers, too, often seek to employ technique without accountability. This spares them the responsibility of having to dump certain clients, thereby losing accounts. If corporate lawyers want the respect of a public profession that holds itself up to higher standards of ethics than do the rest of us, they must season rigor with judgment. This should be especially true for Washington lawyers, whose corporate clientele have such vast impact on social policy and the general public. The larger the stakes, the larger the responsibility.

Which is not always self-evident in the behavior of Washington lawyers. It is a matter of personal choice, not professional compulsion, that Tommy Austen intimidates FDA staff, engages in ex parte contacts to influence agency decisions, uses the "work product" standard as a cover for running the Tobacco Institute's computer, and refuses to acknowledge that smoking can be hazardous. No ethical obligation required Lloyd Cutler to meet privately with Senator Kefauver's opponents, to bring the representative of a powerful constituent to his meeting with Congressman Van Deerlin, to acquiesce in client schemes that would deprive South American peasants of low-cost drugs or foist hazardous drugs on foreign consumers, or to oppose, systematically, nearly every automobile-safety improvement on behalf of Detroit.

There are many more examples. James McKay, rather than quitting the Plumbing Fixtures Manufacturers Association account or reporting its criminal conduct, at best merely swallowed hard and closed his eyes. Stanley Temko directed a delaying action that permitted the continued marketing of a drug known to be dangerous by his client and presumably by himself. Jack Schafer continues to represent ITT despite its apparent irresistible impulse to fix public policy unethically or illegally. Ernest Jennes engages in ex parte lobbying seeking to influence pending cable-TV cases. In all these situations, intelligent lawyers choosing their clients and their techniques, often in a unique position to influence corporate policy for the better should be held accountable for the results of their advocacy.

And if they don't like what they are asked to do, they can quit. As did Robert Wald, who dropped P. Lorillard when its position on cigarette hazards became untenable; as did the Hartford, Connecticut, law firm of Day, Berry & Howard, which apparently dropped ITT's account after the Fazzano episode was disclosed. Continental Baking, Fazzano, Dita Beard et al., Chile, war claims: with this roll call, it would not shock even the Washington legal establishment if Covington dropped ITT as a client.

An Arnold & Porter lawyer tossed out the challenge in an interview: "They like their money so much they just look the other way. But ask them: how can they be fig leaves, flunkies, for such a corrupt firm?"

(3) Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1, 7, 8 (1975):

[T]he role-differentiated character of the lawyer's way of being [which Wasserstrom questions] tends to render irrelevant what would otherwise be morally relevant considerations. Suppose that a client desires to make a will disinheriting her children because they opposed the war in Vietnam. Should the lawyer refuse to draft the will because the lawyer thinks this is a bad reason to disinherit one's children? Suppose a client can avoid the payment of taxes through a loophole only available to a few wealthy taxpayers. Should the lawyer refuse to tell the client of a loophole because the lawyer thinks it an unfair advantage for the rich? . . . . In each case, the accepted view within the profession is that these matters are just of no concern to the lawyer qua lawyer. The lawyer need not of course agree to represent the client ... but there is nothing wrong with representing a client whose aims and purposes are quite immoral. And having agreed to do so, the lawyer is required to provide the best possible assistance, without regard to his or her disapproval of the objective that is sought.

(4) Edwin Greenebaum, Attorneys' Problems in Making Ethical Decisions, 52 Ind. L. J. 627, 627, 629-631 (1977):

In representing clients, attorneys exercise their authority and responsibility as members of the legal profession. As long as there has been an adversary system, there has been dispute regarding advocates' conflicting loyalties to their clients and to the public, a debate which has been pursued with renewed vigor in recent years.

* * * *

As young lawyers begin to perceive the potential conflicts of interest between their clients, themselves, their law firms, the legal profession and society, conflicts which may center on emotionally charged matters, they discover that practicing law has distressing aspects.

There are a substantial variety of motivations prompting individuals to join the legal profession. But to most first-year law students, law is authority and has the mission of maintaining order. The profession draws to it persons who want this authority to do and be certain things; it must be clear, predictable and just show the clear road to proper ethical choices. The disappointing fact is that the law is in many respects unclear and unpredictable and is sometimes the engine of injustice. Further, law is a helping profession in which practitioners are faced with subtle and difficult conflicts of interest between themselves, their clients and society, frequently involving distressing human circumstances. The ethical choices facing the legal practitioner are a challenge to anyone's maturity. The reality of the law, then, is unsatisfactory, and students and practitioners will be motivated to avoid seeing it.

The traditions of the profession do provide rationalizations for those who would abandon their own judgment to that of the group. . . . Whatever rationalizations lawyers accept, however, there will remain that portion of their personalities which holds to notions of goodness which were learned as children growing up in a family and in the general community. Coping with the resulting internal conflicts is a part of every attorney's personal agenda.

The alternative to abandoning one's judgment to that of the group is to learn to acknowledge one's conflicting personal motivations and to make judgments on explicit recognition and weighing of facts and values influencing decisions. If this is the path of greater responsibility, however, it is also potentially one of greater distress, requiring as it does living with insoluble dilemmas, with concern for the suffering of clients and others, and with never having certain knowledge that one's decisions are right or wrong. Attorneys can never be certain of the moral correctness of their decisions because of the uncertainty of values and because of uncertain knowledge of the likely consequences. Training in ethical behavior cannot responsibly content itself with extinguishing inappropriate defenses to practitioners' anxieties, but must help in learning new behaviors, which while consonant with professional values, will also make possible living with the stresses of professional work. . . . The extent to which decisions should be governed by authorities and the extent to which they should be left to the consciences of individual attorneys is itself a value question. An attorney with appropriate humility will frequently defer in his judgment to colleagues or to the mores of the legal community.... The legal profession will not become more "ethical" until allocation of authority and acceptance of responsibility are more realistically faced.

Just as it is difficult for parents with children and for doctors with patients, it will always be difficult for lawyers to deny their dependent clients something they want or something an attorney feels a client needs. And it will always remain difficult for attorneys to know when they are being appropriately humble in giving deference to group norms and when they are merely avoiding responsibility or being personally prudential.

(5) "Moral Issues in the Idea of Shared Authority," in Thomas Shaffer & James R. Elkins, Legal Interviewing and Counseling 290-293 (St. Paul: West Publishing Co., 2nd ed. 1987):

It strains belief to assume that the lawyer always respects the moral impulses of her client. One's explicit or implicit view of human nature may make respect for conscience very difficult. Even if the disposition of Trollope's lawyer, Mr. Camperdown, to treat his clients as children is avoided, it is sometimes hard to respect clients' moral judgment. Our argument is that a my-conscience-or-yours standoff is less likely when the client's desires have been elicited and cared about and the lawyer's conscience is brought into the open and cared about. What we propose is a moral conversation. We propose that the lawyer's moral view of her client's behavior be expressed. Such an expression is, we think, required by the principle of openness in dealing with the client.

The absence of moral conversation, lawyer conscience becomes a source of subtle (or not so subtle) pressure on the client -- pressure amplified by client dependence. In such circumstances, the client's freedom to act is circumscribed as much as it is when the decision is made and imposed by the lawyer, and even more than it will be if the lawyer asserts her position and then refuses to act unless the client adopts her position. The cure for ulterior moral influence seems partly to be the lawyer's understanding of her own moral impulses, and partly humility enough in the lawyer to admit to herself that her impulses may be wrong and can be educated. It is possible for moral impulses to be wrong. It is possible to learn how an impulse is systematically wrong and to learn how to change it. Much of our moral life is intuitive, no doubt, but conscience is an intellectual as well as intuitive faculty. It is the product of reason and imagination. It needs information and guidance, and the client is a source of moral information and of moral guidance.

Much of a lawyer's influence and advice is moral, and moral influence and advice is, as Karl Barth put it, conditional: "He who takes the risk of counseling must be prepared to be counseled in turn. . . . Such mutual counseling . . . implies that he refrain from too much and [from] becoming thereby a lawgiver."

[The principal influence threatening the ideal of client self-determination in a law-office decision] is the influence of the lawyer, and, most particularly, relatively inaccessible but stubborn lawyer behavior that proceeds from undisclosed moral notions. All of our examples have assumed that the lawyer listens to and understands his moral impulses and deals with them consciously (even orally), and that he respects the moral impulses he observes in his client.

In fact, though, moral impulses are subtle. They are often difficult to understand, and they are, in our "pluralistic universe," even more difficult to articulate. This is another instance where effective legal counseling requires a resolute effort to achieve self-awareness.

* * * *

Moral leadership in law offices usually comes, at least at first, from lawyers. David Reisman, a lawyer who became a social scientist, gave insight into his choice of career when he noticed this moral leadership. Lawyers are testing grounds, he said, for the client's disposition to distrust government, or business, or whatever it is the client seeks protection from when he sees a lawyer. It is probably not possible for the lawyer to turn off the client's moral sensitivity, but it is possible to render it inaccessible to the business of the office. And one way to do that is to treat conscience as irrelevant. The result is not a choice for neutrality; it is a choice that is anti-moral. It is not possible not to choose, as Sartre would say; if law-office decisions are made without reference to moral feelings, they are made without regard to moral issues and moral outcomes. But morals operate whether the people in the law office invoke them or not. They are part of what people say and do, in the law office as well as everywhere else: To choose to ignore morals is to choose against morals.

Holmes' bad-man theory of law is the melancholy social principle that a citizen will do anything he can get away with. Legal decision is tested against the implicit empirical judgment that people are no damned good, that it is never the principle of the thing and always the money. The theory has usefulness, much appeal, and great peril, in education about and practice in the courts. In litigation -- or so the Holmesian might insist -- there is no room for shades of feeling, or for the fragile seedlings of conscience. Good and evil exist -- crude and obvious and clear. We state the possibility that the bad-man theory may flourish in litigation, not to agree with it, but to argue that it has pernicious effects when it is brought into the law office. Most legal decisions are made in law offices, not in courts; the law-office climate is intimate and interpersonal; it a place where sensitivity is possible; a place for the good person theory of law.

Conscientious Objection in the Practice of Law

Course Readings   Home Page