Professional
Responsibility
Robert Service & Blanders Blakelock
Reading
Assignment: Louis Auchincloss, Diary of a Yuppie 3-11 (Boston:
Houghton Mifflin, 1986)
Robert
Service has been at the law firm of Hoyt, Welles & Andrew for eight
years and is unashamed in proclaiming that his "sole ambition"
and "obsession" has been to become a partner the firm. [3]
We can assume that obert Service considers his ambition to be a
virtue. We might want to reflect on Service's ambition and his ethics.
Has Robert Service let ambition get the best of him?
Ambition: [Middle English from Middle French or Latin, literally, going around] an ardent desire for rank, fame, or power; desire to achieve a particular end; applies to the desire for personal advancement or preferment and may suggest equally a praiseworthy or an inordinate desire [Webster's Seventh New Collegiate Dictionary (1972)]
How do you see ambition at work in the law school world?
Do you agree with Hall's skepticism on the difficulty of monitoring one's own ambition? Should one even purport to try?
Service
refers to his work as a corporate takeover specialist as "warfare."
[3]
When
Robert Service meets with Blanders Blakelock, a senior colleague and mentor,
to discuss "tactics" in a pending case, we learn that Blakelock
finds the tactics Service wants to use offensive. Service, having worked
with Blakelock, knows that Blakelock isn't going to approve his proposed
strategy. In musing about the meeting in which these matters will be discussed,
Service tells us something about his relationship with the senior Blakelock.
- Service describes
Blakelock as paternalistic. What kinds of paternalism have you experienced
as a law student? Does your response to paternalism in legal education
offer any clues as to how you might deal with it as a young associate
in a law firm? What kind of paternalism do you expect to find in the
practice of law?
In
response to what Service perceives as Blakelock's paternalism, and his
affection, Service tells us it was to his advantage to "play along"
with Blakelock because he was a senior partner and had his "destiny
in his hands." [6]
- When Service
"play[s] along" with Blakelock is he being duplicitous? Is
it duplicitous to "play along" with a teacher to get a good
grade?
Service seems
to suggest that although Blakelock cares for him, he has no reciprocal
duty to care for Blakelock. Service contends that to assume any such
a duty is an "illusion." Do you agree?
How do caring
efforts of a teacher create a duty on the part of students? What is
your duty to the teacher of this course? In what sense, moral or otherwise,
would it be an "illusion" to assume that teachers and students
create duties by the way they care for each other? Or, as Service suggest,
is this notion of reciprocal duty a wishful fantasy? If moral
duties are not created in exactly the fashion denied by Service, how
are they created?
How does
Service attempt to persuade you that Blakelock's caring for him does
not create a duty on his part to care for Blakelock?
Service
raises an issue about the way different generations view morality. He
contends that the practice of law has always been something of a "game"
and that Blakelock isn't willing to recognize it as such. Service says,
"today we're franker about it [the law being a game]. And I think
that's better." [10] [The
"game" metaphor]
Service
finds that his "anticipated ecstasy" in becoming a partner at
Hoyt, Welles & Andrew has resulted in anxiety rather than relief and
contentment. [5]
Service
is soon to become a partner in a thirty-six-partner firm. How do you reconcile
his insider knowledge, experience, and success with his rather caustic
comments about litigation? Service says: "[I]t strikes me that litigation
has survived in a world of computers like a Toonerville trolley on the
track of a Metroliner. Yet its very survival has made it curiously revered.
The tricks and winks and chuckles of the courtroom technique, the voice
of thunder, the sly insinuations, the throat clearings, the whispered
conferences, the whole hammy vaudeville adored by judge and jury--and
by television audiences--has become too sacred to be touched, has even
in some crazy way taken the place of our empty churches as the shrine
of the oldest American virtue." [8]
A law student reader of this comment complained that people don't really understand lawyers and their work and consequently don't understand the ethics of lawyers. The student may be right but the comment has a defensive ring to it. How should we go about distinguishing the criticism of insiders and outsiders? Are there moral implications in the way we deal with criticism?
In an August 20, 1992 speech, former President George H.W. Bush accepting the Republican Party nomination for reelection, made the following comment about American lawyers:
- "And I see something happening in our towns and in our neighborhoods.
Sharp lawyers are running wild. Doctors are afraid to practice medicine.
And some moms and pops won't even coach Little League any more. We must
sue each other less, and care for each other more. I am fighting to
reform our legal system, to pet an end to crazy lawsuits. And if that
means climbing into the ring with the trial lawyers, well, let me just
say, Round 1 starts tonight.
"After all, my opponent's campaign is being backed by practically every trial lawyer who ever wore a tasseled loafer. He's not in the ring with them, he's in the tank."
How do you respond to this kind of polemic, to this claim that lawyers are a moral drain on society?
The next President Bush continued the Bush family tradition of anti-lawyer sentiment. President Bush (Bush II) in his State of the Union address on January 28, 2003 attempted to argue that lawyers stand in the way of "high quality, affordable health care for all Americans." President Bush claimed to be working "toward a system in which all Americans have a good insurance policy and choose their own doctors and seniors and low-income Americans receive the help they need. Instead of bureaucrats, and trial lawyers, and HMOs, we must put doctors, and nurses, and patients back in charge of American medicine." Bush went on to say that "[t]o improve our health care system, we must address one of the prime causes of higher costs, the constant threat that physicians and hospitals will be unfairly sued. Because of excessive litigation, everybody pays more for health care and many parts of America are losing fine doctors. No one has ever been healed by a frivolous lawsuit and I urge the Congress to pass medical liability reform." ["President's State of the Union Message to Congress and the Nation" (text as provided by the White House), New York Times, January 29, 2003, p. A12, c.1]
One might hope for, if not expect, a more nuanced view from the President of the United States of the role of personal injury lawyers and their efforts on behalf of those who have suffered grave harm while in the care of physicians and hospitals. There is much talk about frivolous lawsuits and "excessive litigation"; virtually no talk about the thousands of lawsuits filed by individuals who have been injured unnecessarily, injured by the proven negligence of those entrusted to care for them. The President may be right in his claim that "[n]o one has ever been healed by a frivolous lawsuit," he simply fails to mention or account for the thousands who have been healed, as best they can be healed after-the-fact, by non-frivolous law suits.
There
are a good number of twists and turns in the argument between Service
and Blakelock about how to proceed in the Atlantic-Hylands litigation.- Service tells
Blakelock that he has "evidence" of a questionable behavior
on the part of the opposing firm's CEO which he proposes to use on behalf
of his firm's client. Blakelock is incredulous: "You're surely
not planning to use it? . . . . You've got to be crazy, Bob."
[8]
Blakelock has personal knowledge about the CEO of their client's takeover target and explains the questionable behavior as that of a man trying to look after a mentally disabled bother. Service persists in the notion that they should use the material. He isn't persuaded otherwise when Blakelock presents the possibility that use of the material might kill the CEO's brother. [9] [The killing of the mentally dysfunctional brother reminds us of Atticus Finch's admonition that it's a sin to kill a mockingbird and his decision, at the end of To Kill a Mockingbird, not to expose the killing of Bob Ewell by Boo Radley.]
Service
argues that they should use what they have found because the opponents
would do so if they were in a similar position. [9]- Blakelock
argues against the tactics on they grounds that they simply aren't
that "desperate." [9]. Blakelock
may, implicitly, be reminding Service of the historical and ethical
mandate of lawyers to serve as officers of the court, their duty to
exercise independent judgment on behalf of their clients, and the
responsibility of lawyers to determine the means (if not the ends)
of the representation. Has Service, in his interpretation of zealousness,
forgotten these fundamental premises of lawyer ethics?
Service responds
to Blakelock's adamant refusal to use hardball tactics on behalf of
Atlantic Rylands with the argument that while they as lawyers may
not be desperate, the "high stakes" interest of the client
justifies an attack on the opposing CEO. The question here is simply
this: Should a lawyer put his own ethics at risk on behalf of desperate
clients? One response is that the morals of lawyers and clients are
not really connected at all--lawyers have their morals, clients have
theirs. In this view, lawyers don't have to worry about the morals
of their clients because they are hired-guns and the morals of the
client are simply irrelevant to what we do in our work. But as we
have begun to see, there are significant problems with this argument.
Service seems
to think that the firm has nothing to lose from using the tactics
he advocates. Blakelock claims that their honor is at stake. Is an
appeal to honor likely to persuade Service that his proposed tactics
are inappropriate? Try it both ways: (a) that it is a good move and
might bring Service around to give up the idea of using hardball tactics;
and, (b) based on what you know about Service, Blakelock's rhetoric
is unlikely to be persuasive. - Is it possible to figure out what effect Blakelock's appeal to honor
might have on Service without making a judgment about Service's character?
- Service dismisses
Blakelock's appeal to honor with the idea that they checked their honor
at the door when they went into the corporate takeover business. [9].
How persuasive is such an argument?
- Service argues
for using the "dirt" they've dug up on the CEO of the target
firm and views its use as a worthwhile strategy for blackmail of their
opponent. [as a key to their success in the case. Blakelock's response:
"No! Never! I won't have it." [10].
He refers to Service's strategy as a "dubious" advantage.
[11]. In what sense is the advantage Service
seeks a "dubious" one?
When it appears
that Blakelock will reject his proposed "tactics," Service
poses a moral dilemma: A lawyer can perform his public duty to a client
or maintain his personal honor. The duty owed to the client outweighs,
Service argues, our personal distaste for the tactics that might help
us prevail. One might imagine Service saying to himself: Now old
man I've got you, got you on the horns of a dilemma, and you can go
one way or another, either way, you impale yourself on the horn of the
duty you fail to recognize. [On ways to respond
to such classic dilemmas, see Robert Pirsig, Zen and the Art
of Motorcycle Maintenance: An Inquiry Into Values 229-230 (New York:
W.W. Morrow, 1974)]
Service distinguishes
mud-slinging and use of what he calls "legal mud." [10-11].
Blakelock rejects the distinction. Service persists. Are distinctions
such as this one an inevitable result of legal thinking? [For
use of technical legal distinctions in the service of higher moral causes,
see Robert Bolt, A Man for All Seasons (New York: Vintage Books,
1962)]
Blakelock says
to Service, "Robert, you appall me." [11].
What is the difference, if any, between this statement and the following:
"Robert, this tactic you propose is appalling." Or this one:
"Robert, this argument you have made for this course of action
is appalling." Do the rephrased statements imply the former?
Blakelock expresses
concern about his young associate's "amorality." [11].
How does Blakelock's diagnosis of Service's morality square with your
own perception of Service's character?
Blakelock
tells Service to talk this matter over with his wife and let her be
his guide. Jerry Kennedy, the lawyer protagonist in George Higgins's
Kennedy for the Defense (New York: Ballantine, 1980) tells a
story about how his wife, Joan (who he calls Mack), says that he's "the
classiest sleazy criminal lawyer in Boston." Kennedy knows that
Mack is "not flattering" him but doesn't take offense at the
depiction. [13]- After listening to her husband talk about one of his clients, a pimp named Captain Midnight, Mack says of her husband's fee in the case: "You shouldn't take that money. . . . That's, that's dirty money. That's blood money." [35]. And Kennedy's response?
- "It's living off the earnings of a prostitute, I suppose.
. . . I know where it came from and I know how it got there and
I don't like it either. But you could say that about almost every
fee I get--it's somebody's ill-gotten gains. Most of the people
I represent are professional criminals. They don't have segregated
trust funds they can draw on to pay me. Cadillac Teddy [another
of Kennedy's clients] makes his living--some of his living, anyway--stealing
cars. Teddy pays me. Teddy pays me with some of the money he gets
from stealing cars. Captain Midnight gets his living off of prostitutes.
He pays me out of that, which is how I get my living. . . . When
you sell a house to somebody [Mack is a real estate broker], do
you make sure he's paying for it with clean money? Trace it back
to the family fortune and make sure none of it was earned in the
slave trade? No, you don't. You sell the guy the house and take
your commission, which is what you should do. If he got the down
payment by cheating on his taxes, that's his worry, not yours."
"It's not the same thing," Mack said. "It's not the same thing at all."
-
"No," I said, "it's not. Trouble is, the Constitution says every man's entitled to counsel of his choice. He chooses me, I have my living to consider. The Constitution doesn't say that I can't consider my living. Doesn't say anything about it. Because not eating is unpleasant, I generally take the case. That cash won't keep us healthy and it won't make us happy and it won't keep Heather [Jerry and Mack's daughter] from going haywire and deciding she prefers a Captain Midnight and a life on the street to her stereo set and her own room, to people who love her and some very nice friends. But if she stays on her current course, it'll send her to college and keep her teeth straight and allow her to wear good clothes. If Captain Midnight's little waif had come to my private office for oral surgery the last time he kicked her teeth in, she would've paid for the repairs with money she got from hustling because there's no Blue Cross Blue Shield Master Medical down in the Combat Zone; if she had done that, and I were a doctor, should I have refused to make her well?" [35-36]
- Mack changes the subject and doesn't pursue the matter. Kennedy is a street smart lawyer and says enough to put us thinking. Any ideas about how you might respond to him?
Service
presents a number of different justifications for the "questionable"
tactics, and we might reexamine the Service/Blakelock argument to devise
a complete list:
Another problem with the "everybody is doing it" argument is that it is factually wrong: everybody is not doing it. Some may be doing it; many may be doing it. But whatever it may be that we try to justify with the "everybody is doing it" argument is most assuredly not be doing by everybody. The practice in question may be widely adopted, but we know from history, current events, and personal experience that wide adoption does not make a practice right. But, as it turns out, the systematic looting of a corporation and the cooking of the books turns out to be wrong, even as they were being justified by "aggressive" accounting practices (and the leading accounting firms willing to sign-off on these practices).
Blakelock
and Service offer various terms that help define their moral stances.
Consider the following:
- desperation (of lawyers and clients)
- honor (maintained and suspended)
- duty (to clients and to self)
- game
- warfare
- frankness (honesty)
- obscenity
- mud-slinging
How do
these terms identify the conversation as moral discourse? Or should
the conversation be called something else? One student objected
to the identification of the conversation as ethics talk. She had
been a philosophy major and had never heard such a term in any of
her philosophy courses. She didn't like the term ethics any more
than she did moral discourse, and argued that they both suffered,
in her view, from a fatal flaw--the teacher who used these terms
had failed to define them.
It becomes
evident that both Service and Blakelock bring a good deal of baggage with
them to the conversation. Indeed, it might be argued that this conversation
began long before this discussion about tactics in the Atlantic Rylands
case.
Consider Blakelock's statement to Service: "I feel almost as if I did not know you." [11]. Earlier, Blakelock had said, "Robert, I can hardly believe my ears. Is it really you talking?" [9]
Can you speculate on the broad outlines of their respective world-views? [Note: It is the discovery of a different approach to motorcycle maintenance on the part of his friends that provokes Robert Pirsig's positing of fundamentally different visions of reality which he labels classic and romantic in Zen and the Art of Motorcycle Maintenance.]
In pursuing this possibility that Service and Blakelock have fundamentally different views of reality, consider the following observation by the philosopher, Stuart Hampshire:
Any actual choice between two ways of life, which comes to a head in a particular conflict of duties, arises from dense personal experience, and as a consequence of a man's particular conditions of life, and of his philosophical beliefs. . . . [M]orality does unalterably have this aspect of commitment to a way of life, even though many persons may never consciously confront such an ultimate choice. . . . A decision in an ultimate conflict may commit the agent to a way of life, which will extend in time indefinitely, as far as he knows, and, as far as he knows, it will close certain possibilities to him for ever, even though they are possibilities that he had thought of as being very highly desirable and valuable.
. . . . To some men [and women] a narrow specialization of achievement presents itself as an overriding moral requirement of some outstanding value, perhaps of aesthetics or of science or religion [or law], to which they are committed to the exclusion of all others; to others the neglect of competing moral claims, which the specialization entails, is repugnant and seems inhuman, and they reject it as impossible from a moral point of view. That there should be both these irreconcilable opinions, and that one mind might not unreasonably oscillate between them, is expected in the common order of experience, and is familiar from episodes in history and in literature. The commitment may emerge from prolonged reflection and from a review of philosophical, religious, political and scientific beliefs; and yet the final intuitions of the right way, as it seems, may be very incompletely explained. Every reflective person has had the experience of oscillating between two possible descriptions of his own conduct, whether it is actual conduct or only envisaged conduct; one correct description makes the conduct acceptable and not to be despised, and the other correct description mentions features of the conduct which make it morally questionable and regrettable. Two competing ways of life, between which a man [or woman] chooses, explicitly or implicitly, may impose different descriptions on the same envisaged conduct, which may emerge as prohibited in virtue of the descriptions relevant to one way of life and as positively required within another way of life. It is not only that the priorities to be aimed at are different in the two ways of life, both in respect of moral claims and of dispositions; but also the questions that one asks about a course of conduct, before evaluating it, will tend to be different." ["Public and Private Morality," in Stuart Hampshire (ed.), Public and Private Morality 23-53, at 47-48 (New York: Cambridge University Press, 1977)]
Notes
See: Carrie Menke-Meadow, The Sense and Sensibilities of Lawyers:
Lawyering in Literature, Narratives, Film and Television, and Ethical
Choices Regarding Career and Craft, 31 McGeorge L. Rev. 1, 18-20 (1999).
On Auchincloss and
his fiction, see generally: William Domnarski, Trouble in Paradise:Wall
Street Lawyers and the Fiction of Louis Auchincloss, 12 J. Contemporary
Law 243 (1987); David Ray Papke, The Writer on Wall Street: An Interview
with Louis Auchincloss 5 (3) ALSA F. (1981)
The More
the Merrier: Interview with Louis Auchincloss
