Professional Responsibility

The Two Kingdoms Problem

We hear lawyers and students of law say, with a straight face, "so long as what my client does is legal, and what I do is legal, there is no reason for anyone to question my ethics." The moral justifications for this stance can and should be explored and questioned. The question comes down to this: Is there a separate morality for personal and professional life?

"It is a singularly good thing, I think, that law students, and even some lawyers and law professors, are questioning with increasing frequency and intensity whether 'professionalism' is incompatible with human decency--asking, that is, whether one can be a good lawyer and a good person at the same time." [Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 192 (1978)]

Contrast Freedman's observation about our increased willingness to ask whether one can be a good lawyer and a good person alongside Thomas Morgan's observation that: "The very discussion of legal ethics seems to bother many American lawyers. They view a challenge to their ethics as equivalent to a challenge to their honesty and believe that, in the final analysis, ethical judgments involve highly personal, even semi-religious decisions as to what is right and wrong." [Thomas Morgan, The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702 (1977)]

Geoffrey Hazard, who was actively involved in the drafting of the Model Rules of Profession Conduct, notes that "[o]ne of the most persistent criticisms of lawyers' professional ethics is that lawyers are permitted or required to act ex officio in ways that they would not consider proper in their personal conduct." [Geoffrey C. Hazard, My Station as a Lawyer, 6 Georgia St. U.L. Rev. 1, at 1 (1989) (citing Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975- 76); Gerald Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U.L.Rev. 63 (1980); Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988))]

Judith Shklar, a political philosopher suggests that "we assume that our public roles carry greater responsibilities than our private ones. We expect to behave better as citizens and public officials than as actors in the private sphere." [Judith Shklar, Ordinary Vices 78 (Cambridge: Harvard University Press, 1984)]. Yet, there is the persistent argument in lawyer circles that lawyers, in their role as lawyers, have less "public" responsibility than the everyday citizen.

The way we think about lawyer ethics and public reponsibility may turn on the kind of identity we adopt (and adapt) as lawyers. Thomas Shaffer has argued that personal identity is "broader and deeper" than professional identity. [Thomas Shaffer, Christian Theories of Professional Responsibility, 48 So. Calif. L. Rev. 721, 735 (1975)]. Consequently, a professional identify split off from one's personal identity poses some interesting ethical questions.

It is part of our "modern" thinking, and thus modern philosophy, Linda Hirshman notes, that "proposes the separation of private virtue and political morality. . . ." [Linda R. Hirshman, The Virtue of Liberality in American Communal Life, 88 Mich. L. Rev. 983, 1002 (1990)]. "[A]ll human societies live with a boundary between the public and the private; there will always be a realm that we simply will not want to share with others and that we will wish to be protected from the intrusion of others. Where I differ from the liberal political theorist," says Seyla BernHirshman, "is that, whereas he or she seems to be sure where these boundaries ought to lie, I am deeply suspicious of the implicit politics of a certainty attained without truly open public debate." [Seyla Benhabib, "Liberal Dialogue Versus a Critical Theory of Discursive Legitimation," in Nancy L. Rosenblum (ed.), Liberalism and the Moral Life 143-156, 155 (Cambridge: Harvard University Press, 1989)]

We are still left with this most basic of questions: can one escape the bounds and strictures of ordinary morality when one acts as a lawyer. Even professional responsibility/legal ethics scholars realize that there's no escaping the question.

It is true that a lawyer is expected to represent a client zealously within the bounds of the law, but the question may fairly be asked whether this relieves the lawyer of any moral obligation other than compliance with the law. Put more broadly, when a person acts in a capacity of a lawyer, is he relieved of the personal or moral responsibility for the consequences of his actions? [Robert Aronson & Donald Weickstein, Professional Responsibility 9-10 (St. Paul, Minnesota: West Publishing, 1980)]

Alan Goldman, in The Moral Foundations of Professional Ethics 1, 2, 6-7, 18, 19, 23 (1980) lies out the problem:

Laymen typically judge the behavior of professionals by applying ordinary moral categories and principles to assess their conduct. . . . Certain . . . charges of misconduct in business and the professions are defended by appeal to special professional goals, norms and roles: the need to pursue profit for business managers, the requirement to place clients' interests first for lawyers, or to prolong life itself for doctors. Such disputes relate often to the well-meaning behavior of professionals in pursuit of the fundamental values of their professions.

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[M]any of the concrete moral problems faced in everyday practice in the professions emerge in their full complexity only after we have settled the initial question regarding special norms. . . . While the fundamental values and norms of each profession differ according to the goals and purposes of the institutions of which they are a part, we may inquire of each such norm whether it is to be elevated about its usual moral importance in the institutional context in which it centrally functions.

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If the responsibility of advocate lawyers for the consequences of their actions upon third parties is to be so systematically diminished . . . this must be because doing so is necessary for their fulfilling their proper professional function. The complex justification for strong role differentiation here requires that the institution in question serve a vital moral function in society. . . . The interposition of the special professional norm between the professional's ordinary moral perception and his action must be justified in terms of the deeper moral teleology of his profession. It must be shown that some central institutional value will fail to be realized without the limitation or augmentation of his authority or responsibility, and that the realization of this value is worth the moral price paid for strong role differentiation. . . . [One price exacted for strong role differentiation] is the dulled moral perception of the professional himself, his insensitivity to interests that oppose the norm in question. This insensitivity may generalize into areas of conduct in which it can no longer be justified.

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The departure from immediate overriding demands of our common moral framework must somehow be justified in terms of that very framework.

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[T]he fact that the case for strong role differentiation would have to be made through appeal to shared moral beliefs and principles means that we may feel at ease in assessing its defense by the methods of ordinary moral reasoning.

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Institutional obligations amounting to strong role differentiation systematically augment or limit the authority and responsibility of those in institutional roles to act on direct moral calculation. Imposing them is morally best when error would be likely if all agents involved acted on their own general moral principles. The interposition of special norms is to simplify the moral universe, and to shift decisions toward consequences that are cumulatively best, but unlikely to be achieved by individual well-intentioned agents acting on their own.

Now that we've identified the problem, we need to see if we can learn how it ensnarls us as lawyers. We might begin with the observations of Thomas Huff, The Temptations of Creon: Philosophical Reflections on the Ethics of the Lawyer's Professional Role, 46 Mont. L. Rev. 47, 47, 50-51, 52, 53 (1985):

As lawyers, you are subject to a variety of temptations. There are, of course, the usual temptations of private gain manifest in laziness, dishonesty, or thievery. If you succumb to these temptations you will be subject to immediate and thorough censure by your profession and the public. More often, however, if there are moral errors which tempt you, they are errors of professional role rather than errors of private gain. These are more subtle, less easily recognized temptations. They show up as failures of ethical insight and moral sensitivity. It is the kind of moral error which comes from too great an identification with role. . . .

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Suppose a client arrives at your office seeking help to achieve ends which are unjust or immoral. It is not difficult to imagine examples. A bitter husband seeks custody of his children in a divorce battle simply to hurt his wife, or a debtor wants to escape an honest debt by invoking a legal technicality against the creditor. How should you respond? First it should be noted that you must recognize that there is a moral conflict in the situation presented by the client. This may not occur if you are sufficiently isolated from moral claims outside your professional role. You, as a lawyer, are particularly vulnerable to this way of missing moral issues because you are constantly called upon in your professional life to act as the agent of your clients--to speak or make arguments on their behalf whether you agree with those arguments or not.

To manage this distancing of your moral self from your professional action, you may be tempted to identify with the requirements of your role to the exclusion of what you consider morally right. The moral risks that such distance entails are, however, substantial. . . . [Y]ou may fail to see all your responsibilities, or see them too late. It was this sort of blindness from which the Nixon administration lawyers apparently suffered. They were genuinely surprised at the public's moral outrage. They simply had not perceived they were doing anything wrong. In the absence of regular contact with the rich resources of everyday moral experience, brought on by the isolation which professional roles invite, any lawyer's sensitivity to moral issues may fail.

Moreover, seeing yourself as a lawyer, as a professional, and thus as an important person, can be a distracting self-image. As Thomas Nagel notes: "[s]uch a picture disguises the fact that the exercise of power, in whatever role, is one of the most personal forms of individual self-expression, and a rich source of purely personal pleasure." Roles are pleasures to play, especially roles with prestige attached to them. . . . You can imagine yourself doing important things--like assuring the rule of law. But when you do this you may distance yourself even further from your everyday moral experience and the resources that experience provides for moral judgment; you may fail to recognize the moral issues present in your professional life.

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[The Rules of Professional Conduct] express some powerful social ideals in their preamble and preliminary statements. But these codes [that is, a code like the Rules of Professional Conduct] do not offer a developed account of how you are to express your own more general moral principles in meeting your professional responsibilities. . . . [A]lmost no attention is given to the interplay between good moral character and institutional role.

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How might you . . . avoid the temptations described above? First you should be warned against the simple-minded identification of moral responsibility with role responsibility. . . . Do not allow yourselves to be seduced by your role! .

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As an attorney, when you remain open to the claims of morality, you will discover that often what you believe instinctively to be morally right is exactly what your role requires, and your moral sensitivity will enrich your action as you meet your role responsibilities. But what if your sense of what is right and what you believe your role requires conflicts? In this instance you should be honest! Don't be tempted to deny there is a conflict by reducing your professional responsibilities to your sense of what is morally right or vice versa. Face up to the conflict. Ask for justification of the conflicting principle which the profession seems to require. Does it reflect a legitimate division of moral labor? Is it a morally proper role to ask a professional to play?

Edwin H. Greenebaum, Review Essay: Attorneys' Problems in Making Ethical Decisions, 52 Ind. L. Rev. 627, 630, 631-632 (1977):

The traditions of the profession do provide rationalizations for those who would abandon their own judgment to that of the group, although practitioners may have to chose between discrepancies in role behaviors acceptable to subgroups of the profession: the ABA [American Bar Association] or the local bar, firms representing substantial business interests, the personal injury bar or legal services groups and so forth. 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.

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[A]ttorneys motivated to maintain, not to mention advance, their economic positions and social status are under intense pressures to conform to the approved conduct of the groups or individuals which maintain them, which include clients, employers and the local bar. . . . Sacrificing status for the sake of ethical conduct is not easily done.

The emotional pressures to view oneself as honest and honorable cause practitioners to rationalize what they are compelled to do as ethical conduct, or they are likely to find a new context in which to earn a livelihood. It is no wonder that, however rationalized, the action ethic of the profession is most client-oriented in those areas of practice wherein clients are best situated to hire and fire their attorney's, and that client-oriented ethics are on shakier ground where attorneys' economic security depends on relations to institutions other than the client.

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The above discussion views attorneys membership in professional groups as both seductive and coercive, but even more is involved. Working in groups is notoriously difficult. Problems of authority, dependency, intimacy and security, among others, are acute for group members. Group myths and unstated assumptions may govern conduct, making more difficult the accomplishment of work.

Thomas L. Shaffer, Faith and the Professions 71-73, 75, 76, 85, 93, 95-96, 97, 99-100, 108-109 (Provo, Utah: Brigham Young University, 1987):

Is there a separate morality for professional life? In terms of experience, convention, and argot, the answer to that question would appear to be: Yes, there is a separate morality for professional life. Our forebears have not followed, and we do not follow, the same morals in public and professional life that we follow in personal life. . . .

A common professional and political view is that a lawyer may do for his client, or an official for his country, or a physician for his patient, what would be immoral if either acted in the same way for himself.

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Sometimes the argument . . . is that public and professional life has no morality. If that is the argument it is not interesting ethically, since ethical discussion begins with a first principle: Do good and avoid evil. One who won't agree on that beginning point is not interested in ethics. It may be possible to talk with him about football, but not about morals. I'm not sure I would want to play poker with him, particularly if he viewed power as a professional activity, or his professional activity as a poker game. . . . The argument behind the agent's [or lawyer's] saying 'It's my job' is that it is a good thing to do the job and that there is a good way to do the job. That argument . . . is a moral argument. [The argument made by those who assume that a job carries its own morality] imply that their jobs dispense them from the personal morals they would otherwise follow in their work--and that, too, is a moral argument.

Atticus Finch, who was, I think, the most popular American lawyer of the 1950s and 1960s, would probably . . . answer my question the other way. He would probably say, "No. There is not a separate morality for professional life." It was Atticus who said, "I can't live one way in town and another way in my home." Atticus's moral system was the "code" of the Southern Christian gentleman. [Shaffer goes on to argue that it is the gentleman ethic that brings Atticus to resist the notion that ordinary and professional morality are two different moralities. See e.g., pp. 96, 98, 101, 107].

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We lawyers don't call this theory [underlying what we do in the name of ethics in the practice of law] the doctrine of the two kingdoms. . . . We call it the adversary ethic. It is not argued theologically; theology had disappeared without a trace from . . . [the legal profession's] official thinking before the adversary ethic was invented. But the adversary ethic in the law . . . look[s] like secular, post-Christian, God-is-dead versions of what might elsewhere be called the theology of the two kingdoms.

The adversary ethic appeared in the legal profession's collective morality at about the time lawyers such as David Dudley Field began acting for the robber barons of the American industrial revolution. Or, more accurately, it appeared when lawyers began to defend themselves for acting for the robber barons, and at the same time began to design limits on what a lawyer could do when acting for such clients.

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An argument that may trace to two-kingdoms reasoning, or at least that resembles it, is the argument that each of our jobs has a moral logic of its own, an inherent morality that is defined not by the person's status or order but by the nature of the work he is given to do. . . . Albert Speer, Hitler's architect, told himself he need not worry about Hitler's slave-labor camps because his job was to be an architect, and the logic of that job required single-minded devotion to the design of great buildings.

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The morals of the task resemble the morals of the two kingdoms; and the principal complaint of critics of the morality of the task is that a moral agent cannot be divided up--cannot be a person one moment and a doer of jobs the next. In morals, according to these critics, only a person acts, always a person, always and only a single and whole person. If he acts to deny or to diminish his being a person, he acts immorally--this both as a matter of principle and as a matter of consequences.

John Noonan . . . quoting Charles Curtis, says, "You devote yourself to the interests of another at the peril of yourself. Vicarious action tempts a man away from himself. . . ." While I understand the attractiveness and even the inescapability of the catch phrase, "I'm doing it for my client". . . . I also see the phrase functioning as a kind of carapace. The phrase functions as a defense against various moral claims, a defense against responsibility. If a lawyer can utter this incantation and can take it serious enough, responsibility and the feelings accompanying it are shifted to the client. The fault is like the one St. Augustine confessed from his days as a Manichean. "I very much preferred to excuse myself and to accuse some other thing that was in me but was not I." Noonan's argument is that one who reasons vicariously does not reason as a moral person at all. St. Augustine would have said the attempt is destructive. "My two wills . . . were in conflict and in their conflict wasted my soul."

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The ethics of task resembles the ethics of the two kingdoms, but there is a difference that has to do with a fixation on work--with the sort of thing that is popularly celebrated by saying of someone, "He lives to work rather than works to live."

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There are of course ethical thinkers in the professions who do not accept the theology of the two kingdoms--even though, I think, almost all of us have been influenced by it and have learned to take it into account. These dissenters say they believe and try to live as if there is only one kingdom and as if there can only be one morality in our lives, a single morality to govern both personal life and professional life.

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It is important to notice that there is a recurrent tendency in moral thought, a tendency that serves the deceptive way in which we excuse the evil we do, to find a special morality to govern each part of our ambiguous selves. The adversary ethic, the ethics of privacy, and the ethics of profit . . . , may not require or turn on that kind of thinking, but it is fair to say that these ethics tempt us to that kind of thinking. It is hard to live as a whole person. It is important to see that, I think, and to tell the truth about it. What I have identified as the one-kingdom view seems to me one sound intellectual discipline for telling the truth, for being responsible. It may not be important, as it may not be fair, to blame the error on those who have taught the moral theology of the two kingdoms. In any case, it is important to say of both sides of the argument that these theologians teach about a single person. That single person behaves in two prototypical ways--in institutions and out of them. He serves institutions much of his time, and some of the time he does not serve institutions. The debate is about how he should behave when he behaves institutionally. Traditional two-kingdoms reasoning would come much of the way with me in making some melancholy reflections about the way we behave when we behave institutionally--in government and in courts; in hospitals, businesses, and newspapers; in law firms; in schools and churches, universities, and Rotary Clubs:

1. We tend in institutions to suppress our best discoveries about human nature. People in institutions tend to take all human insight, all sound principles, and turn them into ways of insuring the institution's survival. . . . I think this fact explains the archetypal need we seem to have for a theology of two kingdoms. It is what makes the two kingdoms not so much a theology as a syndrome, and finally, an idolatry.

2. When we act in institutions--and this is the reason it seems good to act in institutions--we act in favor of stability and order. . . .

3. People in institutions have a way of acting, an official tendency to turn other people into commodities, and to excuse themselves with grand, official phrases such as health, justice, equality, due process, privacy, democracy, and the rule of law. But behind the phrases are hidden patterns of behavior that show, when brought into the light, that people in institutions usually do not have values strong enough for community life. . . . The institution is substantively empty when all it has is procedures. . . . Without personal, substantive morals, people in legal institutions tend to forget . . . that law is an ordinance of reason for the common good. . . .

Robert Veatch, Medical Ethics: Professional or Universal?, 65 Harv. Theol. Rev. 531, 548 (1972):

Experience can narcotize as well as sensitize. The medical student seeing his first patient suffering from intense pain and pleading for analgesia may respond differently from the hardened staff professional who has witnessed this daily for many years. The gaining of years of experience also has some subtle effects. The long process of professionalization, in addition to providing technical skills, is a socialization into a different sub-cultural group with different group identification, different systems of meaning, and different perceptions of reality. . . . The professional is gradually, but decisively, alienated from the layman's medical world view. . . . Although experience in a professional area does, in many cases, increase awareness and sensitivity to the social and humanitarian problems in that area, that same experience may harden the professional into insensitivity and alienate him from the layman's evaluative frame of reference. In short, there may be some gains, but in many cases they will be offset by very real tendencies in the other direction. The conclusion required seems to be that there is no evidence for a quantum difference in expertise in ethical decision-making that accrues merely by being a member of a professional group.