Professional Responsibility

Class Notes

January 14. 2003: I enjoyed our first class, and hope it has launched a semester of worthwhile work and discussion. I trust you will, as we proceed, disabuse me of fanciful notions I may hold about the course and the value of what we do. The mark of a professional is that he tries to get things right--even when that sense of right is disputed, contested, and yes . . . even subjective.

We began our discussion today with an exploration of the idea of morals and ethics and how we commonly think of morals as differing in material respects from ethics. I do not place much stock in the effort to distinguish the terms, notwithstanding the common perception that they are indeed distinct terms. As I suggested in class, I think we over estimate the subjectivity of morals, just as we over estimate the objectivity of ethics (as least in the form of professional ethics). Are morals and ethics subjective? Of course they are. Are morals and ethics objective? Of course they are, otherwise we could do no more than assume that each of us lives on his/her own moral island, communicating about morals and ethics with each other by placing messages in a bottle and through them out to sea.

In occasional notes, following a class, I may have occasion to comment further on issues raised in class:

Defining Terms Like Morals & Ethics: The Place of Definitions in Philosophy

Doing Philosophy: You may have decided, even from this first day, that we mean to take seriously the idea that ethics requires that we talk and think differently than we do when we engage in legal discourse.

| A Note on Doing Philosophy |

January 16. 2003: The discussion about the real estate problem proceeded quite well and I appreciate your willingness to deal with a barrage of questions and deal with them so early in the class. I'm confident that some significant number of you may have had rather different views about whether a lawyer should represent the real estate developer, and we will be hearing and exploring those views in the days ahead.

At the end of the class, we began to explore the idea that it is a lawyer's job to represent clients and to do so with engaging in the kind of inquiry that we undertook in class. There are various philosophical stances that a lawyer can take that seem to justify an approach to the real estate developer, which says, in effect, "all this talk about morals and ethics is unnecessary." The first problem with this stance is that it begins with a conclusion: This ethics talk just isn't necessary. We might, however, begin with a question rather than a conclusion: Is this kind of talk of any value or not? I don't know how we can make that determination without engaging in the conversation and then taking up some questions: does this talk help? Did we learn anything we didn't know? Does it help us see the problem in a different light? Does it allow us to see that there are fissures in our thinking when it comes to moral and ethical matters?

We'll need to do some serious thinking about the argument that a lawyer has a kind of job, the job requires a certain kind of work, and that job-work doesn't entail the kind of moral inquiry we undertook in our discussion on January 16th. The real question here, as I tried to hurriedly suggest in class, is that when you say the lawyer job dictates a stance--for example, represent the clients who seek out your services--then that proposition needs to be questioned. First, we note that no lawyer takes every client who walks in the door. Lawyers expect to be paid for their services, and while there is some expectation in the legal profession that lawyers will engage in some pro bono activities and provide some pro bono services, lawyers will turn out potential clients when they believe or determine that the client has no ability to pay for the services. There are, of course, clients who cannot pay for legal services but are able to acquire lawyers by way of contingent fees, that is, a fee in which the lawyer is paid from the proceeds of a settlement or verdict.

Lawyers may turn away clients for various reasons:

the lawyer may not be competent (or want to try to become competent) to handle certain legal matters (e.g., tax law, estate planning, securities law, patent and copyright law are all specialized areas of practice, so specialized that when a client approaches a lawyer with problems in these areas, the case may be referred to another lawyer) (a lawyer might, e.g., not want to represent the real estate developer because the issue involves a constitutional issue which would be better handled by a lawyer with experience and expertise in dealing with constitutional issues, although one might assume that the issue in this particular case is one that any thoroughly competent lawyer might be willing to take on);

the legal matter presented to the lawyer may involve an issue that will require such extensive involvement that the lawyer fears the representation of the client would jeopardize her work for other clients (indeed, a lawyer, or law firm might be sufficiently busy that they simply would not be willing to take on new clients);

the lawyer or law firm may have, for whatever reason, decided to limit their practice (e.g., not to represent criminal defendants--unless appointed to do so by the court, not to handle divorce cases, not to take personal injury cases);

the lawyer or law firm may decline to represent someone who has a general reputation in the community of being difficult to work with, and indeed, has a reputation for entanglements and disputations with various lawyers in matters these lawyers have handled for them (I would assume that most lawyers and law firms want to stay as clear of "difficult" clients as they possibility can);

and finally, as we discussed in class, the lawyer may simply find the client or what the client seeks to do so "repugnant" that she does not want to have to deal with the person on a professional basis. (Obviously, criminal defense lawyers must learn to deal with repugnant clients, and they do so not only because it is their "job" but because they represent principle which are constitutionally grounded).

I suspect, in this idea that a lawyer has a job, there is also the notion that we may judge work by one set of ethics and the person who does the work (off the job) by still another. There are been a good deal of academic and scholarly commentary on the idea of professional morality vs. ordinary morality, and I will not attempt to summarize that scholarly literature here. For those that want to pursue this idea, see: 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); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (Fall, 1975); Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 193-196 (1978)(a response to Wasserstrom); Thomas Huff, The Temptations of Creon: Philosophical Reflections on the Ethics of the Lawyer's Professional Role, 46 Mont. L. Rev. 47 (1985); Alan Goldman, The Moral Foundations of Professional Ethics 1, 2, 6-7, 18, 19, 23 (1980); Michael Schudson, Public, Private, and Professional Lives: The Correspondence of David Duley Field and Samuel Bowles, 21 Amer. J. Leg. History 191 (1977); Robert M. Veatch, Medical Ethics: Professional or Universal, 65 Harv. Theological Rev. 531 (1972); Benjamin Freedman, A Meta-Ethics for Professional Morality, 89 Ethics 1 (1978); Mike W. Martin, Rights and the Meta-Ethics of Professional Morality, 91 Ethics 619 (1978); Alan Goldman, The Moral Foundations of Professional Ethics (1980); Hampshire, "Public and Private Morality," in Stuart Hampshire (ed.), Public and Private Morality 23-53 (New York: Cambridge University Press, 1978); Burnele V. Powell, Lawyer Professionalism as Ordinary Morality, 35 S. Tex. L. Rev. 275 (1994); Bruce A. Green, The Role of Personal Values in Professional Decisionmaking, 11 Geo. J. Legal Ethics 19 (1997); Burnele V. Powell, Lawyer Professionalism as Ordinary Morality, 35 S. Tex. L. Rev. 275 (1994).