Professional Responsibility

A Case Study in How Ethics Works

Reading Seymour Wishman's reflections on his encounter with Mrs. Lewis, we discover a number of clues about how ethics works.

Giving Reasons. Wishman finds it necessary to give reasons for his humiliation of Mrs. Lewis. [Seymour Wishman, Confessions of a Criminal Lawyer, at 3-18] We engage in moral discourse and see ethics at work when confronted with actions that are challenged and we must give reasons for what we have done. In giving reasons, we account for the harm that others attribute to our actions.

Wishman's reasons are based on the knowledge that something has gone wrong in his professional life:

He has failed to take personal responsibility for his actions. [11, 17]

His memory has been affected by his work. He forgets the faces of those he prosecutes and represents. [14, 15]. One day in a hallway outside a courtroom Wishman runs into a defendant who has been found innocent in a case that he has prosecuted. The man introduces himself, but Wishman has forgotten not only the man's name but his face. "When I failed to recognize him [the innocent defendant] in the corridor by the elevator, I told myself I had simply prosecuted too many cases--prosecuted too many defendants who looked alike and committed the same crimes. I had forgotten him. . . ." [14]

And there are other incidents. "It was around the time I met in the corridor the defendant whom I had perhaps wrongly convicted that I decided to leave the prosecutor's office. I'd been there for two years and had been thinking about moving on for some time. One afternoon I found myself in the middle of a summation in another case--calling for the conviction of yet another scourge of society--when I realized I had forgotten the defendant's name and the charge against him." [15]

He cuts himself off from his ideals and his feelings. The more Wishman plays the game and learns the skills necessary to win, first as a prosecutor and later as a criminal defense lawyer, the more he becomes cut off from the ideals that had taken him into law and from his feelings. "I . . . coped with my feelings by putting them aside, out of the way of my professional judgments." [42]. He distances himself from the fact that he feels responsible for the punishment of a criminal when he obtains a conviction. "Although they were guilty--often of atrocities--I was even more disturbed than I expected to be by the thought of anyone going to jail because of my skill. Unlike other prosecutors, I wouldn't appear on sentencing day. . . ." [14]. Wishman tries to shield himself from his concern about punishment and prisons so he can concentrate on getting convictions. But putting aside such feelings, necessary as it might seem to be to do the job, is part of a pattern that leads to his "chilling glimpse" at a person he did not intend to be.

He develops stock answers for those who question what he is doing. [14]

He finds he has no intimate relations with other people. "What had once been a shield of self-protection separating me from a psychologically threatening criminal world had assumed the pretension of a personal philosophy. The chances for intimacy with new friends or new ideas had diminished slowly over the years without my noticing it. With lower expectations of people and ideas, I could no longer be disappointed easily. Aside from the self-defeating limits this attitude imposed on my relationships, it was a depressing world view to be alone with." [240-41]

Wishman begins to see that he has used his power and skill in harmful ways and covered up the harm with "flippant" answers and "lofty jurisprudential arguments." [17]. Wishman later refers to the rhetoric that he has used to justify humiliating Mrs. Lewis as "posturing." [69]

Self-Examination. Confessions of a Criminal Lawyer is a story of one lawyer's moral self-examination. "[F]or the first time in my life, my habit of examining myself was shifting from external details to the moral level." [56]. We see ethics at work when we look carefully at ourselves. The first place to look is at the prized claims we make about ethics posed to protect our self-interest and ignore the interest of others.

Wishman says

I had to examine in a disciplined way the sources of my anger, the anger that was peculiar to me rather than to criminal lawyers generally. I decided that one way to begin this examination would be to write about it.

I had vague memories, hidden, it seemed, behind many thin, finely spun curtains. I knew I would have to try to draw the curtains back. [241]

Ethics calls us to examine and reevaluate the compartmentalized life that makes it possible for lawyers to view ethics the way they do. But it is not just the compartmentalization of professional and ordinary ethics that Wishman calls into question, but his ideals and distorted sense of self. He attempts to exhume the vague purposes, and ideals guiding and shaping his sense of what he is doing in the practice of law. But as vague and ill-defined as his deeds may be, they still represent, Wishman believes, a higher ideal than that exemplified in his humiliation of Mrs. Lewis.

Slowing Down and Taking Account. Ethics slows us down and disrupts the placid self-assurance that holds our self-defenses in place. In slowing down, we refocus on purposes that get pushed aside in the headlong rush to be successful lawyers. We put ethics to work, by slowing doing. Wishman says,

I would have to screen my cases from now on. I had never turned down a case because the crime or the criminal were despicable--but now that would change. I could no longer cope with the ugliness and brutality that had for so long, too long, been a part of my life.

I also knew that I couldn't deal with the same volume of cases. I couldn't constantly be in court, on my feet, arguing, fighting, struggling to win. I needed to find a way to step back from the aggression of the courtroom battles and the violence that was usually the subject over which those battles were fought. [241]

Becoming More Critical. Ethics helps us develop a critical perspective. We begin to see who we are in the "system" and how the "system" has seeped into our character. [The story that Wishman tells about Judge Barrett is instructive on how lawyers become operatives for the "system." [On Judge Barrett, see 7-9, 13][Commentary on Judge Barrett]

Can our ethics ever be anything other than those of the groups in which we live our working lives? Michael Maccoby points out that:

The corporation is of course not fully responsible for the character development of those who work there. Character is formed first in family and school, and the type of person who chooses to work in a corporation has some idea of what to expect. He or she enters with character traits common to young Americans who pass all the exams and get high grades at colleges and universities. The corporate individual must be competitive and highly intelligent in terms of intellectual problem-solving. But most young people are a mixture of still-malleable attitudes. Upon entering the corporation, they still have the chance to become more idealistic and just or they could become disillusioned and self-serving. The traits stimulated in the corporation will in many cases have a decisive effect on the kind of people they become, not only as managers, but as citizens, husbands, wives, fathers, and mothers. [Michael Maccoby, The Gamesman: The New Corporate Leaders 157 (New York: Simon and Schuster, 1976)]

Wishman uses his skill to secure the conviction of a man that he later decides is innocent. When Wishman confirms the innocent defendant's story, a story he has discredited at the man's trial, he sets out to rectify the wrongful conviction. But the system seems less interested in righting the wrong than it does covering it up. A wrongful conviction is more an embarrassment to the system than a wrong to be corrected.

The trial judge reluctantly agrees to reopen the case, but the matter is not resolved. The public defender who represented the defendant resigns and leaves the matter for his successor to sort out. Six months passes before Wishman learns that the conviction has not been set aside. He contacts the new public defender assigned to the defendant and urges him to move for a new trial. Eight months after the trial, the conviction is finally set aside.

When we work in the system and take account of system needs in our thinking, we assume we are thinking of the big picture. With a more reflective critical perspective, Wishman finds that protecting the system may be a worthy goal, but for him it was "too narrow and abstract a concept" to provide him "with any comfort." "I had ignored the larger moral and emotional implications of my actions." [69]

The "system" used to trump one's own moral sensibilities is a system that will devour us.

Making Choices. It is hard to imagine a life without choices and it is in the choices we make that we see ethics at work. Wishman sees that he is constantly in the process of making choices when he presents himself to a jury, and that in all his choices he is saying something about the kind of lawyer and the kind of person he is. "There is no end," says Wishman, "to the possibilities for self-consciousness. Should I smile? Should I get angry? Should I treat the D.A. with respect or contempt? Should I demand that the jury acquit or should I beg them?" [70]

Getting Beyond the Subjectivity of Ethics. Students of lawyer ethics, when first exposed to moral discourse, complain that ethics are too subjective. But their complaint might be turned around. It is by the subjectivity of ethics that we put our individual stamp on the cultural or system features of our professional work. Seymour Wishman's distress is personal, but not idiosyncratic. Wishman suggests that his concerns are related to the moral concerns of the the legal profession as a whole. "I sense that my distress was not just a personal matter but revealed some of the painful moral and emotional dilemmas of my profession." [18]