Professional Responsibility

Can Zealous Advocacy Be a Moral Enterprise?

We cannot think best of ourselves unless we know how to be advocates and we cannot be advocates until we test the limits of our skills. As lawyers, as students, as teachers, we want to have the "right stuff." Many of us want, as Tom Wolfe said of the first test-pilot astronauts, to "test the edge of the envelope." There is something, for some of us, in becoming lawyers, the possibility of testing ourselves, of using legal skills as as test of both competence and moral imagination. Is it not the daring skill deployed in matters of significance that draws us to law? Isn't there something, sometimes hidden, but visible enough to attest to its reality that law has mythic quality?

The stakes are high. We are not talking here about a game where a sports coach hypes another victory. When you get to know lawyers, read about them, watch them in television dramas, you get the idea that winning and losing matter, and it matters because lawyers have big egos, but it also matters because of what the lawyer represents and how winning for some causes and principles calls us back to our ideals and tests the limits of our moral complacency.

Our orientation to winning and losing is so fundamental a part of the culture that many law students sour at the suggestion that winning is not the sole criteria of success. It is this seemingly insatiable desire to win that gets so many of us into trouble. When we are winning, making-it, acclaimed, awarded, venerated, there is little reason to be reflective. Good fortune is not a prod to self-examination.

Every lawyer is going to make up her own mind about the cost of doing what lawyers are asked to do or allow themselves to do. I know of no way to inoculate anyone against moral mistakes. We are all free to make fools of our selves, free to develop reputations as "hired-guns" and "shysters." Some of us will probably become "crooks" along the way. We can certainly police the profession and weedout (some) incompetents, punishing lawyer thieves who steal from their clients, or the grossly negligent lawyer who mishandles his client's affairs. We can banish the most unethical among us. We can sanction and disbar the most egregious of the crooks and incompetents and still have enough ethical outlaws to plague the profession and give credence to our reputation.

We can, as some members of the bar suggest, mount media campaigns and teach the public to better understand the legal profession and the adversary system. We can use the news media to spruce up our image. I don't know whether the American people are gullible enough to be persuaded by such a media campaign or not. The American public may know something about lawyers that lawyers do not know about themselves.

One wonders whether the legal profession is not a bit like Atticus Finch's Maycomb, in To Kill a Mockingbird, divided and self-delusional, a community that does not know the truth about itself, and when it hears the truth must deny it or dismiss it. The legal profession needs to listen more attentively to its critics who tells us that our efforts to take zealousness to its adversarial limits (all the while promoting the adversarial system as a system of justice) poses a serious moral problem. Basically, we need to admit that there is occasion for shame in our profession.

It would be overly dramatic to say that it is a surplus of shame that is driving lawyers from the profession, but something is. Paul Ciotti, a staff writer for the Los Angeles Times, reported on a 1988 American Bar Association poll that showed 41% of a representative sample of lawyers would choose another profession if they had to make the choice again. [Paul Ciotti, Unhappy Lawyers, 4(1) Ethics: Easier Said Than Done 54 (1989)]. Lawyers are reportedly flocking in astonishing numbers to career-change seminars trying to figure out how to retrain themselves. Mr. Ciotti attributes lawyers frustration to paper work, ungracious and greedy clients, a slow and overly adversarial legal system, boredom, overwork, public disdain for the profession, and their own unrealistic expectations about the practice of law. Ciotti found that "[m]ore than ever before, many lawyers say they are working harder, getting richer and enjoying it less." [Id.] Ciotti concludes that the general level of dissatisfaction in the legal profession is high, perhaps an all time high. [Ciotti points out that alcoholism among lawyers is almost twice as high as for the general population. See Ciotti, supra. See Ted Rohrlich, "Bar Group Finds Lawyers' Alcohol Consumption Rising," Paducah Sun, December 6, 1990, p.6A, c.2.]

In recent years corporations faced with ethical melt-downs and costly litigation initiated "ethical audits" and law firms and law schools might be well advised to do something of a similar sort. With lawyers leaving the legal profession we might conclude that there is something wrong with the work, something wrong with legal education, something wrong causing this loss of ideals.

One gets a glimmer of the problem lawyers create for themselves when we listen in as law students address situations in which they are confronted with a choice about how far to press in their zealous representation of a client. In a legal ethics course, I present students with a problem about the negotiation of a lease agreement for a client when the opposing lawyer is trying desperately to complete the negotiation because he plans to take his family to Europe on vacation (he has super-saver tickets that make it costly to renege on the vacation). The question, as it gets framed during the course of discussion, is whether they will bargain for a "fair" settlement for their client or take full advantage of the other lawyer's plans to get an even more advantageous settlement for their client. As one student put it, the issue is doing what is fair for both sides, or taking the other lawyer and his client "to the cleaners." There is no moral outrage expressed by students when a colleague boldly claims that every lawyer, for every client, must get all that can be gotten for the client. When I questioned the proposition, he exclaimed, "I mean really now, you imply that we must not only look out for others, but we must look out for the lawyer on the other side! This is absurd."

When we listen to law students, it becomes apparent that we promote zealousness as an unlimited good and fashion an adversarial role that makes life hellish for anyone who gets in our way, including other lawyers. We make life hellish, not by adopting the kind of zealousness Atticus Finch represents, but the kind of zealousness that violates common-sense, working standards of civility, and the moral notion that we must take account of the harm we do in acting for others. It is a callous zealousness that makes it possible for Seymour Wishman to humiliate a witness like Mrs. Lewis and see "nothing personal" in it. [Seymour Wishman]. And it is the dispirited zealousness--"just doing his job"--that Atticus Finch's daughter Scout describes when she explains Mr. Gilmer's racist cross-examination of Tom Robinson in To Kill a Mockingbird. Or it can be the kind of zealousness that comes from having a harmless purpose, as did Bowen McCoy, that will get us over a Nepelase mountain pass, a purpose that allows us to leave behind a sadhu suffering from hypothermia. [Bowen McCoy]. We make life hellish for each other as lawyers because of an ethic that privileges zealousness without a thought to consequences.

The decision about what we are to do, and to be, in our zealousness, is one we cannot escape. When confronted, law students claim that the decision is a personal one, and argue that we each have our own ethics. I can't recall a student willing to make this conventional but extraordinary claim who could defend it. Assured rather dogmatically, there is not much to be said for lawyer ethics when we follow this logic of moral isolationism.

The problem with moral relativism is not that it 's wholly false, but rather is just true enough to be appealing, and so obviously right to those who proclaim it that it crowds out the kind of critical thinking we need to understand how ethics works. After all, if I did not have my ethics and yours are questionable, where would that leave us? Who will decide what is going to be ethical? Without some weak version of moral relativism we seem to be thrown back to moral absolutes, which are in these times not viewed with favor. The very thought of moral absolutes suggest dictators telling us what is right and what is wrong! In a democracy, and as devotees of freedom, everybody gets to have their own ethics. Ethics, even in the weak version of relativism, begins to look like an inflated way of talking about morals as individual preferences with no more weight than any other opinion one might voice.

Allan Bloom, in his wildly popular and thoroughly objectionable book on education, The Closing of the American Mind, does have a clear eye on one of the problems that plagues our efforts to talk about lawyer ethics, when he says:

There is one thing a professor can be absolutely certain of: almost every student entering the university believes, or says he believes, that truth is relative. If this belief is put to the test, one can count on the students' reaction: they will be uncomprehending. That anyone should regard the proposition as not self-evident astonishes them, as though they were calling into question 2+2=4. These are things you don't think about. [Allan Bloom, The Closing of the American Mind: How Higher Education Has Failed Democracy and Impoverished the Souls of Today's Students 25 (New York: Simon & Schuster, 1987)] [Bloom observes that relativists have different backgrounds, religious traditions, and political views, and they have different career objectives. "They are unified only in their relativism. . . ." Id.]

Relativism, common if not persuasive, cannot be ignored if we are going to talk about lawyer ethics. And yet, students are amazed, even angered, that anyone would question relativism as a moral stance. To do so leads to charges of dogmatism. Bloom finds that when moral relativism is challenged its character is "revealed" by "a combination of disbelief and indignation: 'Are you an absolutist?,' the only alternative they know, uttered in the same tone as 'Are you a monarchist?' or 'Do you believe in witches?"' [Id.]

For my students any effort to explore the "I have my ethics and you have yours" claim suggests I have a concealed moral agenda and that I am not tolerant of their moral views. Anyone who raises even a hint of question about relativism must be a dogmatist intent on imposing his ethics on others. In this view, if we do not quietly accept the conventional relativist rhetoric then we are intolerant of other people's views. The only way to be tolerant and fair is to accept everyone's ethical views, whatever opinions, preferences, interests, attitudes, or predispositions they might disguise. Relativists believe, Bloom argues, that "[r]elativism is necessary to openness" and that tolerance of other views is the only virtue that separates us from dogmatism. "Openness--and the relativism that makes it the only plausible stance in the face of various claims to truth and various ways of life and kinds of human beings--is the great insight of our times." [Id. at 26]. The challenge to relativism is viewed, by those challenged, to be illegitimate.

There is resistance to Atticus Finch and to the the kind of common-sense moral notions he exemplifies. It is possible to defend against the simple moral lessons that Atticus teaches. First, many of us aren't interested in moral lessons; we don't think we need them, and we aren't likely to identify the moral teaching of the lessons that come our way. If we aren't looking to examine the moral fabric of lawyering when it is pointed out to us, we probably won't take kindly to instruction as to the texture of the moral weave of lawyer work. We see best what we are looking for, what we already see well.

Even in ideal circumstances, there are obstacles to accepting the truth of Atticus's life: that compartmentalization is false and it simply doesn't work. For example, some law student readers of To Kill a Mockingbird complain, that the picture of Atticus we get is from the eyes of a child and consequently must be taken with a grain of salt. After all, as one student put it, "we don't know what Atticus would do in a different situation other than the ones we are shown in the novel." For this student, Atticus's willingness to endanger his children's and his own well-being to defend Tom Robinson is an incidental matter. We can never know what Atticus would do if he were placed in the situation we are in today, says this student.

We know a good deal more about Atticus Finch than the student is willing to admit. We may know as much about Atticus as we know about any actual living lawyer. We know more about Atticus than we know about the lawyers we accept invitations to practice with, and perhaps more than we know about ourselves. We know where Atticus came from and who his people were. We know he was "Maycomb County born and bred" [To Kill a Mockingbird, at 9] and that he knew the people of Maycomb and that they knew Atticus. The Maycomb, Alabama, of the early 1930's is the kind of place where the cliche--everybody knows everybody else--is more than a cliché. We know Atticus's neighbors and we know Calpurnia, who takes care of Scout and Jem while Atticus is in town being a lawyer. We know something about the Black community in Maycomb, and something about how that community is organized around the Black church that Calpurnia attends. We know something about the church because Calpurnia takes Scout and Jem to church and we learn how that turned out. [Id. at 119-129]

It is with all this that we know Atticus and know that something is wrong with the student's argument that we don't know what Atticus would do if presented with a "real" problem. It is what we know of Atticus that we can say that he has character, a character as stalwart as one can imagine. What the student can't admit and is unwilling to concede is that we do indeed know Atticus and what we know is that he has character and that his character helps us speculate about what he would and wouldn't do.

Atticus has the kind of character that all of us would like to have nd for those of us who do not aspire to be like Atticus, we are unwilling to admit to the impulses and urges that would have us be less than what Atticus represents.

The student goes on to point out that Atticus is a fictional character and that it isn't realistic to try to live up to the moral standards of a fictional lawyer hero portrayed through the eyes of a child. This argument, like the amoral stance on the issue of zealousness, is another example of compartmentalization: There are Real people and there are characters in fiction; a Real World and a world of fiction. The characters in fiction are not real and therefore can have no real claims on us; the characters of fiction can have no moral weight in our efforts to figure out how to live our own lives.

Once we learn to psychologically compartmentalize our lives we find it handy for all sorts of purposes. Compartmentalization appears to offer protection of the moral character we have already adopted. It is convenient that Atticus, and his character, are fictional and can so easily be set apart from our Real World concerns. My problem, the student tells me during our discussion about Atticus, is that I take Atticus too seriously. I apparently set off alarms when I talk as if Atticus were real and do not remind students that he is not.

This brief, but intense classroom dialogue raises interesting pedagogical, ethical and epistomological issues.

There are diverse intellectual strategies available to those who seek to avoid learning what Atticus has to teach. The course of argument goes something like this: "Why should I believe that any person can have the kind of character that Atticus does? And if such character is possible, what reason is there to believe that any of the people that I know would be interested in trying to be like Atticus? And even if someone among us could imagine herself being like Atticus, it isn't me. There are many ways to be good. We don't all have to be good like Atticus. It is good that we aren't all like Atticus and it is good that I don't particularly want to be like him. I can be good in my own way. It is in the many ways that we are different in our moral perspectives and the many ways that we are good that makes for a lively world. It just doesn't make sense to set up Atticus as the moral beacon for all lawyers. Who knows what kind of problems and dilemmas we are going to face? And isn't it harmful to create insurmountable expectations about the kind of character it is possible for a lawyer to achieve? What is going to happen with your self-image when you hold up Atticus Finch as your image of the good lawyer and find that you can't live like Atticus? Atticus is the composite fictional creation of a writer. There is no real person who has the character that Atticus Finch has. And if there is no Atticus Finch then the way that I see ethics cannot be held up against a fictional portrayal of character, or for that matter held up against anyone's determination of what it would mean to be a good lawyer. There are no heroes to tell us what our ethics should be."

What is a teacher to do when a student asserts that they cannot be expected to have old-time character as a lawyer? And isn't that what the student is saying? Atticus Finch is a person of character. We know that because we know something about him, about his neighbors and how they regard him: They send him off to the legislature in Montgomery even though Atticus is different, reads all the time, is a bit detached, walks when everyone else has given up walking for riding around in automobiles. He disturbs the community profoundly in the zeal he devotes to presenting a truthful defense of Tom Robinson, confronting the community with the prejudice that prevents them from accepting the word of a Black person against that of a White person. It seems obvious that Atticus knows his own mind, and has, as Thomas Bolt said of Sir Thomas More, an "adamantine sense of self."

The defense against learning ethics from Atticus may be one of those situations where what we know about another person is simply something that we cannot accept. To accept Atticus, to understand his character, and to accept the possibility that we need a character like Atticus's to be an ethical lawyer is going to come hard to those who think it possible to learn lawyer ethics from a rule book.

Students want to see the world in simple terms: It is the "job" of lawyers to represent clients whatever harm the law might allow the client to perpetrate. We want lawyers to exercise independent judgment and strength of character to represent clients a community might prefer go unrepresented or represented in a pro forma way. But the amoral zealous advocate takes the idea of independence and freedom of lawyers to represent whomever they might choose, and the pride we take in those lawyers who represent unpopular clients mean that lawyers should represent all clients, whatever their cause, and without regard to the client's moral purpose.

There is a species of unpopular client representation cases in which the moral defense of the representation takes a still different turn. The prototypical example is an American Jewish lawyer who defends Nazis. [See e.g, Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom 1-2 (New York: E.P. Dutton, 1979) ("I supported free speech for Nazis when they wanted to march in Skokie in order to defeat Nazis. Defending my enemy is the only way to protect a free society against the enemies of freedom.")]. Neier recognizes that his position seems to present a paradox, which he sets out to untangle in his book. [Id. at 2] David Goldberger, an ACLU lawyer, who is Jewish, said of his successful efforts to defend the right of a small group of Nazis to march in a heavily Jewish Chicago suburb, "I don't think I'll ever look back on it without remembering the pain it caused. . . . The hardest thing was being at odds with people for whom you had strong feelings of empathy." ["Lawyer Who Aided Illinois Nazis Recalls a 'Very Difficult Odyssey'," New York Times, April 29, 1979, p. 56, c.2]. Goldberger reported that throughout the court fight "he was vilified, threatened with physical harm and forced several times to move his wife and children from their house." [Id.] Goldberger found the beliefs of Nazi leader, Frank Collin, "absolutely disgusting" but could not find another lawyer to take the case. Goldberger agreed to represent Collin because "the case raised classic questions about the constitutional guarantees of free speech and assembly." [Id.]

Whether you would or would not take zealousness to its limits depends on who you are and where you are, on your character, common-sense, and self-image. A lawyer who is a trout fisherman might be unwilling, on what he takes to be personal moral grounds, to represent a company dumping pollutants into a trout stream. And people who love old homes and lament the sorry spectacle of living in the suburbs will not readily represent a real estate developer who wants to level historical homes and build an apartment complex. There will always be lawyers who counsel the vineyard owner against the use of the legal system to help him sell chemically treated wines that are suspected cancer-producing agents. Some lawyers will refuse to seek a delay when the corporate client wants one simply to put pressure on a party to settle; some lawyers will think it Necessary to do it and then find a way not to do it. [For an interesting commentary on why business men and women remain honest, even when the market-place seems to support dishonesty as well as honesty, see Amar Bhide and Howard H. Stevenson, Why Be Honest If Honesty Doesn't Pay, 68 Harv. Bus. Rev. 121 (September-October, 1990)] And there is always, if we are lucky, someone who will see how doing what the client asks us to do is morally wrong, regardless of the fact that we can do it and get away with it and make money in the process.

Each of us much choose. This runs counter to the thinking of students who argue that the choice is made when you decide to be a lawyer. One of the choices we make is how we are going to adopt and adapt this ethic of zealousness to make it fit our character. The judgment that character makes possible, and the character of that judgment, are central to good lawyering and any advocacy that claims moral worth. Without the kind of judgment we first learn as judgment of character we would be not only morally awash but also professionally inept.

The amoralist works a reverse alchemical transformation on the ideal expressed in the ethic of independent judgment and demonstrated courage necessary to represent unpopular clients.

Compartmentalization makes possible the notion that the ethics we have as lawyers don't count as the ethics we have as persons. There are moral risks to this assumption. The problem is that we then lose the ethics we have as persons that would keep us straight as lawyers.

The Model Rules of Professional Conduct promote the moral legitimacy of this stance by noting that "A lawyer's representation of a client . . . does not constitute an endorsement of the client's political, economic, social, or moral views or activities." [Rule 1.2(b), American Bar Association, Model Rules of Professional Conduct]

The comment to Rule 1.2 notes that: "Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities."

The commentary seems to be saying two things at once: We should be willing to represent unpopular clients. I take this to mean that it was morally good for lawyers to represent the targets of Senator Joseph McCarthy's attacks during the early years of the Cold War. It was morally good for lawyers to represent the cause of civil rights workers and African Americans living in the South during the years of the desegregation effort. It was morally good for lawyers to represent conscientious objectors during the early years of the Vietnam war before the tide of public opinion had turned to support the anti-war effort.

My students, the most amoral among them, realize that lawyers become identified with their clients and with what their clients represent. It is one thing to argue, and to know, that as lawyers we can represent a man who kills a policeman in a murder case and not advocate violence against policemen, or murder in general. Lawyers represent all kinds of people for all kinds of purposes without taking up the clients' purposes as their own. Some lawyers are clearly more moral than their clients, and the client's morality will seldom, if ever, be the measure of the lawyer's ethics. Some clients are more moral than their lawyers, and are introduced to schemes and ploys of dubious moral value by their lawyers. The point is not that it is clients that lead lawyers from the path of righteousness or that lawyers must become moral judges of their clients causes. The point is that moral inquiry into zealousness requires that we know that we can go astray and are willing to think about how it happens and what the cost might be.

The ethical muddle that we find ourselves in is one that Atticus Finch escaped by applying the same ethics at home, with his children Jem and Scout, as he did in town, as a lawyer. Scout, Atticus's six-year-old daughter, when informed that things happen behind closed doors that are secrets, tells Miss Maudie, a neighbor: "Atticus don't ever do anything to Jem and me in the house that he don't do in the yard." [Harper Lee, To Kill a Mockingbird, at 50]

Later at the trial of Tom Robinson, Scout is trying to explain to Dill, one of her and Jem's friends why Atticus and Mr. Gilmer, the prosecutor, treat their witnesses differently on cross-examination. Mr. Gilmer refers to Tom Robinson as "boy" and attempts to humiliate Tom Robinson in the eyes of an all-white jury by insinuating that a black man's word cannot be believed when it is refuted by a white woman. [Id. at 200]

Atticus on the other hand humiliates Mayella Ewell, the prosecutrix in the rape case, and her father, Bob Ewell, in showing the jury that Mayela and her father are lying. It is difficult to conduct a successful cross-examination of lying witnesses without humiliating them. When Scout tries to explain to Dill, her friend, why he is sick to his stomach at the way Mr. Gilmer treats Tom Robinson and not bothered by Atticus's cross-examination, the best answer she can give Dill is that Atticus is "the same in the courtroom as he is on the public streets." [Id. at 202]

Atticus did not compartmentalize his life. Atticus took his sense of himself as lawyer home and used his lawyer's sensibility to raise his children. And it can be argued that Atticus treats Mayella and Bob Ewell the way he does because he takes the patience and gentleness that he has at home with Scout and Jem to the courtroom with him.

Atticus would, if I read his character right, scoff at the idea that there is something called professional morality that can (or must) be compartmentalized so that we act more like two persons than one, one person at the office and in the courtroom and another at home with our children. The idea of ordinary morality and professional morality is something that we have cooked up to explain modern day notions of lawyering and lawyer ethics. The idea that we can make sense of lawyers and their ethics by devising two worlds, is more reactive than reflective, more excuse than justification.

The expedient splitting of professional and private life, giving to each its own form of morality makes us schizoid. What we imagine to be an ethics of two worlds--"two kingdoms" as Thomas Shaffer called them--becomes, as it always must, one ethics, an ethics for a schizoid world. [Thomas L. Shaffer, The Legal Ethics of the Two Kingdoms, 17 Val. U. L. Rev. 3 (1983); Thomas Shaffer, Christian Lawyer Stories and American Legal Ethics, 33 Mercer L. Rev. 877, 885 (1982)("We practice our profession with a disabling discontinity between who we are and what we are doing. Too many lawyers try to do that, and they end up in misery, or alcoholism, or repentance.")]

It is an ethics that teaches us to mistrust everyone but ourselves, and assume that all purposes so long as they are sanctioned by law are equally meritorious in their claim for scarce cultural and psychic resources. If law is to be the measure of moral concern, then one lawyer's ethics must be treated as if it were as good as any of his or her colleagues.

The compartmentalization of morals reflects a deeper psychological splitting that helps us keep the shadow side of professionalism at arms length. The split between lawyer persona and shadow, public morality and private morality, is transmuted into an ethics of professionalism set off against an ethics of private life.

In law, as in life, we take persona to be real, and the shadow to be something we see only in the bad apples of the profession. As one student put it in class, "every profession has unethical practitioners but this doesn't mean that there is anything wrong with the profession." The student was trying to ward off the disturbing idea that when lawyers are unethical it is a reflection on her and her profession. She was setting up a counter-claim and an argument against a deduction about a whole from a particular. The whole is greater than the sum of its parts. A bad lawyer (whether bad in the sense of competence or bad in the sense of morals, or bad in the sense of both) is just a bad lawyer. We can't, this student argues, make arguments about the goodness of the legal profession based on the lawyers who have gone astray. We can't let the bad lawyer influence our view of the good that lawyers do. Psychologically, the student was protecting a cognitive choice by using an ego defense mechanisms: denial, rationalization, compartmentalization. The student confirms her persona, the legal persona necessary for deployment of the adversarial ethic, and denys the presence of the shadow, the moral impulse that tells us to respect and care for others regardless of what name we give the work we pursue, what we call our job, or who is paying the fare.

But covering the tracks that we make during the process of splitting ourself into persona and shadow is more difficult than it might seem. There are few of us who can maintain a consistent and deliberate persona that successfully manipulates others into seeing us as we wish to be seen. It is one thing to learn to keep a straight face playing poker, yet another to keep the persona in place, shielding us from our own shadow and from the shadow of the profession. One may develop an ease in keeping a straight face at poker; it is more difficult to live life as persona.

The shadow, regardless of how careful and deliberate we may try to be, keeps emerging. The shadow, Jung tells us, has a life of its own. The more the shadow is disowned the more energy it has in our lives. The more effort we put into maintaining the persona the bigger the wall necessary to keep the shadow in its place. The greater the fear that we will be found to be something more or less than we claim to be, the less we become at the shadow's behest. The shadow, having its own existence, takes up, seemingly on its own initiative, an other-worldly, denied, subterranean existence. And most importantly, having a life of its own, the shadow acts on its own initiative, separate and apart from the ego's desire to be in control, and prove to the world that we are what we have told the world we are. We become the split person. We become compartmentalized into professionals and private persons. We become compartmentalized into persona and shadow.

We want to think that the right hand can act in a way that does not reflect on the left hand; that the left hand need never be implicated in what the right hand does. The right hand of Necessity may feed the left hand of private moral existence, but what the right hand feeds us cannot be digested without consequences for the character we become in the process. Right and left hand are assumed to function on different bodies; we embody the one ethic with the one hand and the ethic of caring and concern, respect and integrity, on the other hand that exists on the same body. The lawyer then wonders why she feels torn, split, fragmented; why she does not feel whole and complete; why each day seems to move her toward burn-out and emptiness, each day defined by the struggle to resist giving-up and giving-in.

   

What we are talking about is a zealousness, no longer empowering, a zealousness that forgets itself, freezing into a philosophy of cruelty. Absent the character of Atticus Finch, zealousness practiced in an unreflective manner results in Bowen McCoy's walking past the problem without seeing his choice as a matter of morals, or deserving of moral inquiry. "I simply don't see this as an ethical problem," we say when confronted with the most obvious moral dilemmas. If we don't see the problem we don't worry about ethics. We don't worry about our zealousness as lawyers because we find it more convenient (and conventional) to proceed on ethical "automatic pilot."

Knowing that some of us will engage in professional malevolence and get away with it is frightening. Knowing what some of us will do in the name of zealousness makes a mockery of ethics. Knowing that some of us will and some us won't take zealousness beyond its limits leaves us with much to talk about. If we don't know what we are doing in the name of zealousness, then the ethics we enact in the name of zealousness will lead us astray.

Notes

We do not know--I do not know--what to do about someone who sets out to do wrong in the name of right, evil in the name of good, when no law has been broken. There is much to despise and condemn without prohibiting the behavior or criminalizing it. To create a perfect fit between law and morality would be to create a perfect hell.

Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed. [Grant Gilmore, Ages of American Law 110-111 (New Haven: Yale University Press, 1977)]

The shadow is a term that psychologist C.G. Jung used to denote those elements of our conscious lives that have been repressed, denied, ignored, and tentatively forgotten. The shadow is held away from public view in favor of a persona, or mask, that is consciously and unconsciously selected and presented to others as the "self" we want to have the world see.