Good Persons Good Lawyers and Good Lawyering 2

8/11/2019 Good Persons Good Lawyers and Good Lawyering 2

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GOOD PERSONS, GOOD LAWYERS, AND GOOD LAWYERING

ABSTRACT

Should lawyers be morally accountability for the legal assistance they provideclients to achieve lawful but immoral ends? Should lawyers be obligated as a matter of

professional duty to counsel clients about the moral implications of achieving lawful

objectives? These questions have provoked spirited discussion in the aftermath of the

Torture Memoranda prepared by the ffice of !egal "ounsel and the recurrent

financial irregularities this country has e#perienced over the past $% years beginning

with the Savings & !oan failures in the '()*s+ the ,nron and -orld"om bankruptcies at

the beginning of this century+ and the financial industry meltdown in the late summer.fall

of $**(/

Many legal commentators answer both of the above questions in the affirmative/

!awyers are morally accountable for helping clients reali0e lawful+ but immoral

objectives and lawyers must engage in a dialogue with clients over the morality of the

lawful objective clients seek to achieve/ 1ailure to do so makes the lawyer complicit in

the client2s immorality and encourages and facilitates illegal conduct/

3n this ,ssay+ 3 question whether these arguments are properly applied to lawyers

and conclude they are not/

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GOOD PERSONS, GOOD LAWYERS, AND GOOD LAWYERING

James M. Fischer

Goo !a"#ers $%ers&a% i&'s %o& a(o$&

&hem, i&'s a(o$& &heir c!ie%&s.))

IINTROD*CTION

4ichard -asserstrom famously questioned whether a good lawyer can be a good

person?' -asserstrom2s inquiry was directed toward the professional claim that a

lawyer did not bear individual moral responsibility for engaging in conduct that was

professionally proper+ but which enabled a client to achieve an immoral+ but legal+ end/ $

The professional claim was that role morality trumped personal morality/ 5nder the

usual norms of personal morality+ an individual who freely chooses to assist and abet a

person2s immoral ends shares in the moral responsibility for immoral conduct/ The

professional claim distinguished between personal and professional conduct holding

that+ as to the latter+ the lawyer+ acting in his or her professional capacity+ did not

partake of the client2s immoral acts/ To this separation of personal and professional

responsibility for volitional conduct+ -asserstrom demurred/ Since then many others

have joined in the demurrer/6 4ecent actions prominently involving lawyers+ such as the

7 8rofessor of !aw+ Southwestern !aw School+ !os 9ngeles+ "alifornia/

** 9T5! :9-9;


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Torture Memoranda prepared by lawyers in the ffice of !egal "ounsel Dand lawyer

facilitation of banking and financial market irregularities+%have ramped.up the concern

that lawyers are failing their profession and society by a single.minded+ clients.centered

focus to their legal work/ To paraphrase the plaint of a federal judge addressing the

earlier Savings & !oan failuresG -hy 9ren2t !awyers 8reventing This?>

D

Iathleen "lark+ "thical Issues Raised by the $L# Torture Memorandum+ ' F/ ;9T2! S,"/ !/ &8!2E D%% $**%AH -/ =radel -endel+ The Torture Memos and the %emands of Legality+ available atssrnGhttpGJJssrn/comJabstractK'D$$>*6AH $**(A discussingincreased civil and regulatory e#posure of lawyers due to financial failures in banking and investmentcommunitiesA/

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The idea that a redesigned professional ethos would avoid objectionable policy

decisions by clients or financial disasters is comforting+ but specious/ 3t assumes that

lawyers have a hidden moral compass that has been squelched by law school

indoctrination@and practice demands+)all of which can be countermanded by a change

in professional ethos/ !et a lawyer2s hidden morality be summoned forth to thwart

immoral client objectives and bad policy and financial irregularity will be significantly

reduced+ perhaps vanish/( 3 suggest that such dreams are unfounded/ 3 argue that

holding lawyers morally accountable for client immorality or requiring lawyers to have

moral dialogues with clients would be objectionable in that it would frustrate+ if not

prevent+ clients from accessing and asserting legal rights/

3n this essay 3 revisit -asserstrom2s critique to e#plore an argument that

-asserstrom and others have undervalued/ The first claim 3 make is that any

assessment of the lawyer2s individual responsibility for professional conduct must

account for the lawyer2s e#clusive control over the means by which legal rights are

asserted and legal claims are vindicated in our culture/ !awyers provide necessary

7 "omplaints that law schools stifle law student moral development are legion/ -3!!39M M/S5!!3C9; ,T 9!/+ ,% '(((A L! aw schools and the dominant case method ultimately teach the incommensurability ofvalues and a moral relativism / / / /AH 4oger "/ "ramton+ Beyond the $rdinary Religion+ 6@ F/ !,:9!

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II

T+E PROFESSIONAL ET+OS

The professional claim that -asserstrom and others critique consists of two.

parts/ 1irst+ a lawyer should be a neutral partisan in advancing the client2s lawful

position/ The role of the lawyer is to facilitate and enable clients to achieve lawful

objectives+ not serve as moral arbiters of the correctness of the client2s moral choices/

Second+ in advancing the client position the lawyer is not morally accountable for the

consequences of partisanship/ The advancement of the client2s lawful position may be

social undesirable+ inflict harm on third parties+ or be morally reproachableH

nevertheless+ the lawyer is privileged to help the client achieve his goals without moral

accountability for her conduct in doing so/


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9nd you get what is usually taken to be the professional morality of lawyers/

:erald 8ostema calls it the standard conception of the lawyer2s role+ -illiam

Simon says that these principles which he calls the 8rinciple of ;eutrality and

the 8rinciple of 8artisanshipA define partisan advocacy/''

-asserstrom contended that the professional claim led to and encouraged

amoral behavior on the part of lawyers/ 9 good+ meaning technically proficient

lawyer+ could not be a good+ meaning morally correct individual+ if the lawyer assisted

the client2s immoral conduct/

8erhaps more critical was an issue hinted at by -asserstrom+ but developed to

greater e#tent by that others that lawyer amorality resulting from the standard

conception encouraged and incentivi0ed lawyers to facilitate and enable illegal client

conduct/'$ This resulted because the line between legal and illegal is often opaque and+

even when otherwise+ partisanship may blind the lawyer to the subtly and nuance of the

situation+ causing the lawyer to misjudge or mischaracteri0e the legality of the client2s

proposed action/'6

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Bolding lawyers morally accountable for facilitating and enabling lawful but

immoral client would+ it was argued+ serve as a constraint against these bad tendencies/

!awyers would interpose their own moral sensibilities and prevent clients from achieving

legal+ but unjust+ results/ The proponents were not always clear whether the lawyer was

obliged to inform the client that the lawyer2s actions would be governed by the lawyer2s

moral sentiments rather than the client2s instructions/'D The proponents were+ however+

seemingly uniform in their belief that lawyer moral sentiments would ordinarily be more

justice.oriented and more morally correct than client moral sentiments/'%

3d/ footnotes omittedA/

14 1or e#ample+ in -illiam Simon2s "thical %iscretion in Lawyering+ '*' B94C/ !/ 4,C/ '*)6 '())ASimon argues that lawyer should have and need the discretion to refuse to implement client objectivesthat would lead to injustices/ Simon is never clear in the paper whether the lawyer2s discretion here mustbe transparent and disclosed to the client/ 1or e#ample+ if the lawyer believes it would be immoral toraise the statute of limitations as a defense+ does the lawyer simply decide the issue himself or does hehave a discussion of the issue with the client/ 3f the latter+ does he follow the client2s directive? >.>@ $***AG

L!awyers Lmust be prepared to accept personal responsibility for themoral consequences of their professional actions/ 9ttorneys shouldmake decisions as advocates in the same way that morally reflectiveindividuals make any ethical decision/

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III

T+E MORAL CRITI*E OF PROFESSIONAL COND*CT

The legal profession has long tussled with the question how far a lawyer should

identify with and assist a client in achieving the client2s lawful aims and goals/ 3

emphasi0e lawful because the issue is lawful versus immoral conduct+ not lawful versus

unlawful conduct/ !awyers may no+ any more than anyone else+ engage in or assist

and abet unlawful conduct/'>

The issue whether lawyers are privileged to engage in or assist and abet

immoral+ but legal+ conduct has long produced diverse opinions within the bar as far

back as the early ;ineteenth "entury/ ne view holds that the lawyer+ being duty

bound to advance the client2s cause+ is immune from the moral consequence of

lawyering/'@ The contrary viewpoint argued that there was no real separation between

16 4estatement ThirdA !aw :overning !awyers P(D $***A/ ,ven the foremost 9merican proponentof 0ealous advocacy recogni0es and accepts this point/ Monroe B/ 1reedman+ +enry Lord Broughamand 4eal+ 6D B1ST49 !/ 4,C/ '6'(+ '6$D n/$% $**>A noting that 0ealous advocacy does not e#cuseor justify violations of lawA/ 1reedman does argue that a lawyer may+ in limited circumstances+ violate aprofessional rule when representing a client/ See Monroe B/ 1reedman+ In Praise of $.er0ealousRepresentation 5 Lying to !udges %ecei.ing Third Parties and $ther "thical #onduct+ 6D B1ST49 !/

4,C/ @@' $**>A/ There is a view that professional codes are not law+ but are a mere supplement tolaw/ See Snow v/ 4uden+ Mc"loskey+ Smith+ Schuster & 4ussell+ 8/9/ )(> So/$d @)@+ @(* 1la/ 9pp/$**%A holding that for purposes of 1lorida -histleblower 8rotection 9ct+ 1lorida 4ules of 8rofessional"onduct was not law that triggered protection afforded by 9ctA/ 3 accept for purposes of this essay thatprofessional codes are law/

17 $ Trial of Oueen "aroline ) F+ ;ightingale ed/ ')$*.')$'AG

9n advocate+ in the discharge of his duty+ knows but one person in theworld+ and that person is his client/ To save that client by all means ande#pedients+ and at all ha0ards and costs to other persons+ and+ amongstthem+ to himself+ is his first and only dutyH and in performing this duty hemust not regard the alarm+ the torments+ the destruction which he may

bring upon others/ Separating the duty of a patriot from that of anadvocate+ he must go on reckless of consequences+ though it should behis unhappy fate to involve his country in confusion/

The strict partisan position has even earlier antecedents/ See ' F9M,S =S-,!!+ TB, !31, 1S9M5,! FB;S;+ !!


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individual and professional selfH consequently+ personal moral duty was professional

obligation/')

The early ;ineteenth "entury debate continues today/ Modernly+ the argument

for moral immunity under the standard conception is framed in terms of conflict of

interest/'( The essential feature of this argument is that were the lawyer to hold back

from advancing the client2s cause for reasons of the lawyer2s personal morality+ the

lawyer would create a conflict of interest that would undermine the duty of loyalty owed

to the client/ This is not to say that under this view the lawyer cannot discuss the moral

implications of the client2s proposed actions with the clientH$*it is to say+ however+ that

ultimately the client decides whether to act morally or immorally and that decision is not

imputed to the lawyer/ The lawyer2s duty is to provide neutral professional assistance to

achieve the lawful objectives desired by the client+ even though the lawful objectives

may be perceived by some as immoral/

3 would concede that the conflict of interest claim operates as an inadequate

justification for lawyer immunity from personal moral responsibility because it is a valid

justification if and only if professional immunity from moral accountability is already

justified/ To say that certain actions by the lawyer would conflict with the interests of the

FohnsonG Sir+ you do not know it to be good or bad til the Fudgedetermines it/

18 See 'D/

20 Such discussions are permitted+ but not required/ Model 4ule $/' holding that lawyer shallrender independent+ professional judgment and advice and may discuss and counsel the client aboutmoral+ economic+ social and political consideration that may be relevant to the client2s matterA/

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political documents+ particularly older documents+ in which criminal proceedings are

given particular attention+ as evidenced by the =ill of 4ights/ =ut that particulari0ed

attention does not e#plain the moral claim of non.accountability for criminal defense/

lder documents simply evidence the desire that certain procedures or rights be legally

recogni0ed and enforceable+ but the priority of personal morality over legal right or duty

is the fundamental claim of the proponents of lawyer personal moral accountability/ The

claim cannot be satisfied by identifying the legal preference given criminal defense

protections/ That same argument would suggest that lawyer nonaccountability is the

preferred status because it is rooted in longstanding professional norms that have legal

or quasi legal status/ So the argument is further made that criminal cases involve

potential loss of liberty+ which is so great a deprivation as to justify moral immunity for

the advocate/

3 don2t question the claim that liberty is a significant value and the loss of liberty is

a significant injury+ but is that loss a special case justifying e#ceptional treatment?

pponents of moral nonaccountability+ seeking to preserve vigorous criminal

representation+ assert that it is+ but is loss of liberty different in kind or only in degree

from loss of other basic rights+ such as loss of employment+ loss of housing+ or loss of

disability or welfare benefits? 9dvocates of accountability argue that the state2s active

role+ coupled with its resources+ in depriving the defendant of his liberty distinguish the

criminal from the civil claim/$6 =ut does a state that actively denies basis human rights+

actively polices and controls personal relationships+ or deliberately denies or fails to

23 -asserstrom+ Lawyers As Professionals+ supra note '+ % B5M/ 4TS/ at '$ =ecause adeprivation of liberty is so serious+ because the prosecutorial resources of the state are so vast+ andbecause+ perhaps+ of a serious skepticism about the rightness of punishment+ even when wrongdoing hasoccurred+ it is easy to accept the view that it makes sense to charge defense counsel with the job ofmaking the best possible case for the accused .. without regard+ so to speak+ for the meritsA/

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provide basic human needs+ impose a lesser burden on its citi0ens? !iberty is an

important value in our modern constellation of rights+ but what is it that makes the liberty

interest unique so as to e#cuse lawyers from moral accountability only when

representing defendants in criminal proceedings?$D -hy aren2t lawyers also immune

from moral accountability when involved in economic claims+ or civil rightsJcivil liberties

claims+ or constitutional rights claims? Modern advocates of lawyer accountability have

e#panded the e#ception into areas where a vulnerable party may be e#ploited by a

sophisticated adversary+$%in effect conceding that the focus on personal freedom is too

limiting/ The problem created by focusing on vulnerability and e#ploitation is that the

terms have no boundaries/ 8hysicians no doubt feel oppressed and burdened by

malpractice litigation/$>


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confusing moral world/$@ -asserstrom was concerned that the enticement and

reassurance would encourage amoral behavior on the part of lawyers who would

identify too closely with their clients/ 3mplicit was the concern that lawyer amorality

would encourage client immorality and+ perhaps+ client illegality/ 3 will concede this is a

real risk and a risk that increases as profit ma#imi0ation becomes the dominant

aspirational goal of lawyers/

-asserstrom2s observation+ however+ begets another+ different conclusion from

what he envisionedG role.differentiated behavior is necessary to enable clients to have

access to individuals who are essential facilitators when it comes to securing legal rights

and the benefits of legal assistance/ The enticement and reassurance allows and

encourages lawyers to accept clients and provide services society deems necessary for

a free citi0enry/ Bolding lawyers morally accountable for their client2s actions+ as

-asserstrom and others urge+ may give lawyers leverage to prevent clients from acting

immorally+ but at the cost of preventing clients from achieving lawful client objectives/

The common law long recogni0ed that holders of necessary resources and

services owed a general obligation to the community to provide those services on a

nondiscriminatory basis/$) There is general+ societal consensus as to the core concept

that essential services should be provided on a non.discriminatory basisH$(the

disagreement is in the application+ for e#ample+ the claim may be that the service is not

27 -asserstrom+ Lawyers as Professional+ supra note '+ % B5M/ 4TS/ at (/

28 See The "ivil 4ights "ases+ '*( 5/S/ 6+ [email protected] '))6A Barlan+ F/ dissentingA discussing commonlaw obligation of common carriers and innkeepers to not discriminate in accepting patronageA/

29 Boward 9/ Shelanki+ ,nilateral Refusals To %eal in Intellectual and $ther Property @>9;T3T45ST !/F/ 6>(+ 6@*.@' $**(A stating that Lon the policy side+ there is a reasonable consensusthat+ at least in theory+ a firm2s refusal to supply its rivals can+ under some circumstances+ harm bothshort.run and long.run consumer welfare / / / / L"onsensus breaks down / / / over views of howsuccessfully courts and antitrust agencies can identify and balance the effects of a monopolist2s refusal todealA/

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essential6*or that access is not blocked/6' The concern that providers of essential

services may use their control to discriminate and deprive consumers of choice is one

that is replicated in many ways in modern society/6$ ,ven if the analogy to essential

services is seen as strained+ the legal profession has consistently defined itself as

devoted to public service in the sense of providing legal services to members of society/

The view of law practice as a business rather than a profession has traditionally been

treated as an aspersion+ not as an aspiration/66

!aw is today a highly regulated practice with e#tensive restrictions on who may

provide legal services and the terms and conditions under which legal services are

6*

=rett 1rischmann and Spencer -ebber -aller+ Re.itali0ing "ssential )acilities@% 9;T3T45ST!/F/ '+ @.) $**)A/

31 ,ven the practice of Fim "rowism was predicated on the pretense that access to essentialservices+ such as public schools+ was not blocked/ Separate but ,qual was the representation even ifSeparate but 5nequal or ;on.,#istent was the practice/ See 8aul 1inkelman+ The Radicalism ofBrown >> 5/ 83TTS/ !/ 4,C/ 6%+ D@ $**DA -hile all these institutes were in theory separate but equal+in practice they were never equal+ in practice they were never equal/ ;o matter how bad conditionsmight be for whites+ they were invariably worse for blacks/AH cf/ Feanne M/ 8owers and !irio 8atton+

Between Mende0 and Brown: ?@>; and The Legal #ampaign Against Segregation+66 !9- & S"/ 3;O534E '$@+ '6@ $**)A The ;99"8 initially challenged segregation in graduate andprofessional schools by focusing on the equal side of separate but equal on the theory that the high costof creating separate and completely equal school systems would ultimately Udestroy segregation2Acitation omittedA/

32 9 current manifestation of this concern is the net neutrality debate/ ;et neutrality argues thatusers of the internet should have open access to+ without discrimination or control over+ any contentavailable on the internet/ 3n effect users should have equal access to congressional debates andpornography/ The opposing view holds that network operators should be able to control which internetcontent gets preferential treatment/ 3n other words+ internet providers would get to advance their policypreferences over those of internet users/33 The lament that law practice is becoming less a profession and more a business is not new/ See

"hamp S/ 9ndrews+ The Law 5 A Business $r A Profession+ '@ E9!, !/F/ >*$ '(*)AH F5!35S "B,;+TB, !9-G =5S3;,SS 4 841,SS3;2rev/ ed/ '($DA/ Modernly+ however+ the question mark is seenas anachronistic/ See 4ussell :/ 8earce+ Law %ay8@8G PostProfessionalism Moral Leadership andthe LawAsBusiness Paradigm+ $@ 1!9/ ST/ 5/ !/ 4,C/ (+ ') '(((AH Mary "/


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provided to clients/6D !awyers2 duties are defined not just by codes of professional

responsibility+ but by common law6%and statutory obligations/6> 9n increasingly frequent

element of this regulation is the requirement that lawyers not discriminate in the

providing of professional services/6@

;o proponent of lawyer personal moral accountability argues that lawyers should

provide professional services on a discriminatory basis/ That+ however+ is the necessary+

34 See Susan + n/D' $d ed/ $**)A identifying '%

jurisdictionsA/

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inevitable result of stripping lawyers of nonaccountability/ !awyers will now determine

whether the client2s end is morally just and decide whether to advance the client2s

position+ recogni0ing that if they do+ they bear moral responsibility for their professional

actions/6) 9s a consequence+ lawyers will then discriminate+ perhaps not on the overt

basis of race or gender or se#ual orientation+ but on the e#plicit basis of the lawyer2s

assessment of the moral worth of a client2s lawful end and objective of representation+

which may conceal improper implicit biases/

This result is troubling/ Moral judgment may conclude that legal judgment is

wrong because legal judgment failed to consider relevant factors outside the legal rules+

which+ for simplicity sake+ 3 will label the moral justness of the legal position/ 1or

e#ample+ proponents of moral accountable often argue that a lawyer acts immorally if

the lawyer invokes the statute of limitations to defeat a just claim+ e/g/+ a debt that was

lawfully incurred+ that client admits he received the money+ didn2t pay it back+ could pay

it back+ but now wants to bar the lender2s claim for repayment on the ground the claim is

time.barred/6( -hy is the lawyer acting immorally here? 3f it2s ability to pay+ why does

that factor trump all the factors that support the time.bar statute of limitationsA?

Statutes of limitation serve a number of purposes/ They provide peace of mind so

people may cleanse their books of potential liabilities that occurred before a certain

38 3 do not address in this essay the issue whether the lawyer2s decision must be communicated tothe client at a point in time that would enable the client to find another lawyer to advance the client2s

position/ Bowever+ if a lawyer should disclose a dereliction of duty =enjamin 8/ "ooper+ The Lawyer6s%uty To Inform +is #lient $f +is $wn Malpractice+ >' =9E!4/ !/ 4,C/ '@D $**(AA+ it would seemappropriate that the lawyer should disclose his intent to subvert the client2s aims and objectives of therepresentation/

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date/D* They prevent the perpetration of fraud by precluding the prosecution of stale

claims because evidence has been lost+ memories have faded+ and witnesses have

disappeared/D' They enhance commercial intercourse by freeing individuals from the

distraction and disruption of litigation/D$ They test whether claims are meritorious the

assumption is that meritorious claims will be diligently prosecutedAH they control docketsH

and they discourage courts from reaching dubious+ difficult to support decisions based

on stale evidence/D6 -hy do these factors fade into oblivion because the clients admits

the debt is owed? 3f the law says that public policy discharges the debt due to passage

of time+ why is the client denied that legal right? 9lthough dressed as moral

engagement+ the dialogue and concerns more closely represent policy disagreements/

3f policy disagreements serve as a fulcrum of moral judgments+ instructing lawyers that

their moral sensibilities are significant in deciding how to represent the client represents

a broad realigning of the allocation of power within the lawyer.client relationship/

!awyer policies now trump client policies/ That would appear to advance the evil of

lawyer dominance that proponents of moral accountability usually disparage/ DD

"ommentators who argue that lawyer personal morality should influence

professional judgment tend to see moral issues as settled/ 9s the use of a limitations

40 5nited States v/ 4ubrick+ DDD 5/S/ '''+ ''@ '(@(A stating 2the right to be free of state claims intime comes to prevail over the right to prosecute them2A+ quoting rder of 4/4/ Tel/ v/ 4ailway ,#press

9gency+ 6$' 5/S/ 6D$+ 6D( '(DDAH %e.elopment in the Law 5 Statutes of Limitations+ >6 B94C/ !/ 4,C/at ''@@+ '')% '(%*A/

41 9merican 8ipe and "onstr/ "o/ v/ 5tah+ D'D 5/S/ %6)+ %%D '(@DA+ quoting rder of 4/4/ Tel/ v/

4ailway ,#press 9gency+ 6$' 5/S/ 6D$+ 6D( '(DDAH see '+ ''>) "al/'(@%;E %e.elopments in the Law 5 Statutes of Limitations+ supra note D*+ >6 B94C/ !/ 4,C/ at '')%.)>/D$

-ood v/ "arpenter+ '*' 5/S/ '6%+ '6( ')@(A discussing 3ndiana2s si# year statute of limitationfor fraudAH %e.elopment in the Law 5 Statutes of Limitations+ supra note D*+ >6 B94C/ !/ 4,C/ at '')%.))/D6

Fames Martin+ #onstitutional Limitations on #hoice of Law+ >' "4;,!! !/ 4,C/ ')%+ $$'.$$'(@>A/

44 -asserstrom+ Lawyers As Professionals+ supra note '+ % B5M/ 4TS/ at '%.'@/

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defense to bar an otherwise valid claim illustrates+ the idea of moral certainty may be

illusory/ "onsider another e#ample+ the withholding of medical care to a child by the

child2s parents based on the parent2s religious convictions/ Should a lawyer allow the

lawyer2s personal moral views to influence how the lawyer would advocate for the

parents regarding their choice?

9llowing a parent to withhold necessary medical care to a child has been said by

proponents of moral accountability to be obviously morally wrongHD%however+ the issue

here is more comple#/ 3n the comple# case in which lawyers become involved+ the

parent is withholding care not because of personal whim or caprice+ but because of

sincerely held+ good faith religious belief/ Stating that the act of withholding medical

45 See 4ichard I/ :reensfein+Against Professionalism+ $$ :,/ F/ !,:/ ,TB3"S 6$@ $**(AG

9n 9ttorney may represent a client who wishes on religious grounds toprevent his infant from receiving necessary medical treatment+ eventhough a foreseeable consequence of success will be that the childsuffers serious disability or death/ =ut acting in a manner that wouldforeseeably harm an innocent person is ordinarily thought to be immoral/

V V V V"onsider for instance+ the earlier e#ample of an attorney who helps the

client prevent his infant from receiving necessary medical treatment/9ffirmatively acting in a manner that has the foreseeable consequence ofharming the child2s health violates a moral duty owed by the lawyertoward the childG in its narrowest form+ the duty owed by persons not toharm innocent others/

3d/ at 6%$+ 6%)/ 5nder this approach use of placeboes in medical research would alsoordinarily be thought to be immoral because participants who received placeboes mightbe harmed because they did not receive the treatment the study was testing for efficacy/n the other hand+ lying may be socially beneficialG

8lacebo treatments+ like sugar pills and saline injections+ are effective intreating pain and perhaps a host of other conditions/ 3n fact+ recent

neuro.imaging studies show that the pathways of placebo pain relief inthe brain largely overlap the pathways of pain relief from drugs likemorphine/ 8lacebos are also cheaper and safer than correspondingactive medications/ The most effectively use placebos to diagnose andtreat patients in clinical practice+ however+ doctors must deceive patientsas to the placebo nature of the intervention/

9dam Iolber+A Limited %efense of #linical Placebo %eception+ $> E9!, !9- & 8!2E4,C/ @%+ @> $**@A/

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care is immoral necessarily asserts that the reason behind the act religious belief and

religious tenetA is immoral/ That makes the issue much more difficult and much more

dangerous/

Treating certain beliefs+ whether held by evangelical "hristians+ Moslems+ or

"hristian Scientists+ or any minority religious group+ as immoral risks marginali0ing

small+ distinct religious communities and subjecting them to discriminating treatment

because their views are outside the mainstream view of acceptable morality/ Moreover+

in the resolution of the moral issue there is no transparency as there is with a legal

decision/ The morally correct lawyer simply subverts the client2s efforts to achieve its

lawful objective/ -here legal proceedings are open to public inspection+ criticism+ and

reviewH lawyer moral decision making is closed+ secretive+ and non.reviewable/D> This

lack of transparency also increases the risk that lawyers may articulate publicly

acceptable reasons to mask the true considerations for the decisions/D@

8roponents of moral accountability often assume the moral high ground rather

than prove the claim/ 1or e#ample+ -asserstrom suggested that a father who wished to

disinherit his son because of the son2s opposition to the Cietnam -ar was acting

immorally+D)but why is that? -hy is the son2s opposition to the war moral+ but the

father2s support immoral? -ould it make any difference if the father was a career

military person+ had fought in a war+ had suffered a war.related injury or loss?

46 "f/ S3S,!!9 =I+ !E3;:G M49! "B3", 3; 85=!3" 9;< 843C9T, !31, ($ '(@)A stating

that moral justification cannot be e#clusive or hiddenH it has to be capable of being made public/A/

47 "f/ Samuel 4/ Sommers & Michael 3/ ;orton+ RaceBased !udgments RaceDeutral!ustifications: "/perimental "/amination of Peremptory ,se of the Batson #hallenge Procedure+ 6' !/ &B5M/ =,B9C/ $>'+ $>( $**@A reporting that study participants often gave acceptable race.neutral

justification for race.based conduct in e#ercising peremptory challenges against minority members of juryvenire panelsA/

48 -asserstrom+ Lawyers as Professionals+ supra+ note '+ % B5M/ 4TS/ at @.)/

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-asserstrom does not develop the pointH he simply assumes the point and moves on/

The morality of the position however+ highly contentious+ which goes to the ne#t point/

8roponents of moral accountability downplay the fact that moral positions are

contentious/ "ontentiousness over what is morally correct raises significant concern

when it is raised as a counterpoint to professional duties/ 3f lawyers+ as professionals+

can refuse to raise statute of limitations defenses because the lawyer believes it is

immoral to defeat an otherwise enforceable claim+ where do we draw the line? May

other professionals use their personal moral sentiments to avoid their professional

duties? 1or e#ample+ should pharmacists be allowed to refuse to provide

contraceptives because they believe the prevention or cessation of life is immoral?D( 3f

lawyers+ as professionals+ can morally provide deficient professional service to clients+

can pharmacists+ as professionals+ morally provide a deficient product to their clients+

e/g/+ a placebo rather than a contraceptive?

,ven if was limit the inquiry to lawyers as professions+ line drawing becomes

e#ceedingly difficult/ Should lawyers refuse to represent life insurance beneficiaries on

fraudulently procured policies insurers cannot contest because the legislature has

decided+ as a matter of public policy+ that the policy should be deemed uncontestable? %*

9 benefit that was fraudulently obtained appears to be one that is morally suspectH that

49 See "atherin :reatis+ Student ;ote+ Religion in the Pharmacy: A Balanced Approach toPharmacists6 Right to Refuse to Pro.ide Plan B + (@ :,/ !/ F/ '@'% $**(A/

50

8ublic policy sometimes limits an insurer2s right to contest policies on the grounds of fraud to aspecific period after the policy is taken outH after that period of time the policy becomes incontestable forfraud/ These uncontestable provisions operate much like statutes of limitations even if they permit somefraudulent claims to be asserted against insurers/ 4obert 4/ :oodins+ )raud and the Incontestability#lause: A Modest Proposal )or #hange+ $ ";;/ 3;S/ !/F/ %' '((>A noting that Lfor decades theincontestable clause in life and health insurance contracts has been interpreted to bar insurers2 defensesbased upon material misrepresentations in the application even in circumstances where the insured hascommitted fraud/A 3s it immoral for a lawyer to represent a client who presents a claim on a fraudulentlyprocured insurance policy that the insurer cannot contest because of the passage of time?

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the client is legally entitled to the benefit does not appear to alter that fact/


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argument for morally correct behavior rests on evasion rather than the inherent morality

of the position/%$ 3n effect+ !awyer ' may act consistent with the lawyer2s moral

sensibilities if+ and perhaps only if+ the client will not be prejudiced because an immoral

!awyer $ will represent the client and secure the client2s immoral objectives/ This is the

moral equivalent of the hot potato argument/ 3 doubt proponents of accountability

would apply the argument elsewhere/ Should innkeepers or lunch counter operators be

allowed to discriminate because the e#cluded patron can find accommodations or food

elsewhere? Telling providers of an essential service that they may act upon their moral

sensibilities to deny service creates the opportunity to do wrong by professing to be

doing right/

"ategory = simply+ allows the lawyer to prefer the lawyer2s personal beliefs over

the professional obligations to represent a client loyally+ diligently+ and with

competence/%6 =ut within a professional role premised on a norm of agency why are the

lawyer2s personal moral views entitled to preference over the client2s personal moral

views/ !awyers voluntarily enter into a professional role of service to clients+ a main

characteristic of which is that the lawyer acts as a fiduciary/%D 3t is a strange twist on the

52 This strikes me as a form of avoision+ which is !eo Iat02s evocative neologism that definesefforts to straddle the line between the legitimate and the illegitimate/ See !, I9TN+ 3!!.:TT,;:93;SG ,C9S3;+ =!9"IM93!+ 1495aA.

bAA and it is generally+ but not uniformly+ accepted that lawyers have no general duty to acceptrepresentation offered by prospective clients/ The issue addressed here+ however+ is lawyer conductwithin an actual+ e#isting representation of a client/

54 4estatement ThirdA !aw :overning !awyers P'> $***AG

To the e#tent consistent with the lawyer2s other legal duties andsubject to the other provisions of this 4estatement+ a lawyermust+ in matters within the scope of the representationG

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idea of a fiduciary relationship that the fiduciary is entitled to prefer his or her interests

over the beneficiary clientA of the relationship/ 3t is uniformly the other way around and

proponents of lawyer moral accountability have not+ to my knowledge+ made the counter

case that a lawyer2s fiduciary duty of loyalty should be subservient to the lawyer2s

personal views on morality/

8roponents of accountability argue that lawyer moral accountability is needed to

restrain lawyers from too loyally+ too diligently+ and too competently representing clients/

There is a suggestion of that in the -asserstrom e#cerpt quoted earlier%%and has been

offered by leading e#ponents of the accountability view/

%>

!awyers are seen as too

willing to facilitate and enable client conduct that is harmful to society/ That harm is not+

however+ illegal harm/ 9s noted previously+ lawyers may not facilitate or enable illegal

harm/%@ 8roponents of lawyer moral accountability are+ of course+ aware of the

'A proceed in a manner reasonably calculated toadvance a client2s lawful objectives+ as defined bythe client after consultationH / / / /

6A comply with obligations concerning the client2sconfidences and property+ avoid impermissibleconflicting interests+ deal honestly with the client+and not employ advantages arising from the client.lawyer relationship in a manner adverse to the clientHand / / / /

55 See supra te#t and notes )+ $'/

56 4B


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distinction between legal and moral harm+ even if the distinction can be elusive/%) They

are concerned that lawyer non.accountability may cause lawyers to overly identify with

clients and+ as a consequence+ fail to identify the correct distinction between legal and

illegal conduct and+ in turn+ facilitate the achieving of illegal ends and objectives by the

client/%(

There is evidence that the failure of lawyers to maintain professional

independence can lead to facilitation and enabling of client misconduct/>* ver.

58 "f/ 9lice -ooley and Sara !/ =agg+ "thics Teaching in Law School+ ' "9;/ !,:9! ,) $**DA discussing the conviction and disbarment of Fohn :ellene+ a -all Street lawyer+ whose close

identification with his client and his client2s case caused him to breach professional and legal obligationsAHFohn "/ "offee+ Fr/+ ,nderstanding "nron: &It6s About the


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identification with the client and the desire to please the client+ whether for personal or

profit.seeking motives+ can cause lawyers to fail to adhere to professional norms and

may cause or contribute to a lawyer aiding and abetting client wrongdoing/

8roponents of moral accountability have not+ however+ made the case that

holding lawyers morally accountable when they properly discharge professional

obligations will+ in fact+ cause an appreciable number of lawyers to change their conduct

to promote moral objectives the proponents advance/ !awyers are already permitted to

decline or withdraw from representations if they find the client2s objectives repugnant or

with which the lawyer fundamentally disagrees/

>'

That allowance has not apparently

influenced lawyer behavior in any significant way/ 3t remains to be demonstrated that

holding lawyers morally accountable will have any discernable or desirable effect on

lawyers that proponents of moral accountability would find laudable/ 3 will return to this

point in 8art 3C of the essay/

Bolding lawyers morally accountable would+ however+ have consequences that

would be socially and morally disadvantageous/ 9s 3 argued earlier+

moral harm is oftentimes very contentitious and that contentitiousness risks that the

lawyer2s mainstream moral views will dominate the client2s outsider or idiosyncratic

moral views/>$ =ecause lawyers are necessary to access legal rights and the legal

system+ a likely consequence is that some lawyers will use their personal moral

61 9=9 Model 4ules+ 4ule '/'>bADA/

62 See Foshua ,/ 8erry+ et/ al/+ The "thical +ealth Lawyer: An "mpirical Assessment of Moral%ecision MaCingSS4;A at $6 reporting results of an empirical study of Tennessee lawyers that Lwhenfacing an ethical dilemma+ the greatest motivating influences / / / were a desire to avoid discipline orsanction / / / and concern over how the client2s interests would be affected/ 9lso likely to influence theactions of these respondents was the desire to feel good about themselves as a person and as a legalprofessional/A The authors of the study also noted that those who reported higher rates of religiosity andreligious involvement were much more likely to be influenced by the desire to act consistently with theirreligious beliefs/A 3d/

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convictions in ways that discriminate against insular and unpopular minorities/ There is+

moreover+ an inherent tension in this claim that lawyers should be morally accountable

for advancing the client2s ends and aims/ !awyers are presented as both too controlling

of clients SvengalisA and as too beholden to clients captivesA/ Bolding lawyers morally

accountable for their actions may discourage dependency+ but it would seem to

incentivi0e control/ ,#cessive control over another autonomous+ free individual raises

moral issues/ -hile proponents of moral accountability have identified this conflict+>6

they have not demonstrated how these concerns can be reconciled/

Some commentators argue that lawyers have a moral duty to discuss the moral

aspects of the clients proposed aims and objectives/ 1or e#ample+ Cischner argues that

while lawyers should not be self.appointed moral arbiters of their clients+ lawyers should

make clients aware of the moral dimension of the legal representationG

The lawyer is not simply a technician+ nor is she a moral

arbiter/ 9s legal advisors+ lawyers are partners in a dialogue

that brims with moral significance+ whether or not they

choose to acknowledge it/>D

63 -asserstrom Lawyers As Professionals+ supra note '+ % B5M/ 4TS/ at '> describing conflict asparado#A/64 4obert I/ Cischner+ Professionali0ing Moral "ngagement+ WW F/ !,:/ 841/ WWW+ WWW $**(A/

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Cischner builds on a discretionary allowance in the professional codes for rendering

non.legal advice>%and constructs the claim that discussion with the client of the moral

aspects of the representation is morally required of the lawyer/>>

Modern society is largely constructed on the principle of division of labor/

!awyers serve as legal technicians/ They are trained in the intricacies and subtleties of

the law/ 8hysicians+ therapists+ investment advisors+ etc/+ all occupy niches in the

division of labor/ 9s society become more comple#+ the general response within the

professions is to speciali0e/ 9 specialist2s knowledge is deep+ but narrowH problems

within the area of speciali0ation are knownH problems outside the area of speciali0ation

are referred to other specialists/>@ ccasionally+ problems straddle lines and create

niches within the fields/ 1or e#ample+ bio.ethics is a specialty that developed because

medical knowledge alone was seen as insufficient to properly address certain problems

that arose in the conte#t of patient care/

65

9=9 Model 4ules+ $/'G

3n representing a client+ a lawyer shall e#ercise independent professionaljudgment and render candid advice/ 3n rendering advice+ a lawyer mayrefer not only to law but to considerations such as moral+ economic+social and political factors+ that may be relevant to the client2s situation /

66 4obert I/ Cischner+ Legal Ad.ice as Moral Perspecti.e+ '( :,/ F/ !,:/ ,thics $$% $**>A/

67 See 9=9 M


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Societal and professional division of labor provide that lawyers have a defined

role as legal advisors/ !egal problem may give rise to moral issues/ They may also

give rise to economic+ financial+ emotional+ medical+ and therapeutic issues/ 3f lawyers

have a duty to discuss moral issues with clients+ do lawyers also have a duty to discuss

with the client other non.legal issues implicated by the representation? 3f not+ why are

moral issues preferred?

!awyers by training and e#perience develop competence in the area of providing

legal advice+ but what prepares lawyers to engage in moral deliberation with the client

or provide moral advice? Baving and forming moral impressions and sentiments is not

the same as having the e#pertise and ability to engage in moral deliberation or to

provide moral counseling and advice/

The claim that lawyers should have moral dialogues with clients regarding the

ends of the legal representation necessarily assumes that clients have little or no say in

the matter/ -hy should lawyers presume that clients have not already considered the

moral issues or presume that clients desire to hear the lawyer2s views on the matter?

9re lawyers the specialists2 clients turn to for moral advice? Must a client+ as part of the

legal representation+ submit to a moral dialogue with a lawyer? -ould we require a

physician to have a moral dialogue with a patient over the desirability of having an

abortion or require a patient to sit through the dialogue?

Cischner argues that moral deliberation is a skill that can be learned/ >) 3 have no

reason to doubt that is true/ Most skills can be learned+ at least to some e#tent/ 9nd

e#posure through education likely imparts a level of understanding that e#ceeds the

average of those who are not e#posed to the topic in an educational environment/ =ut

68 Cischner+ Moral "ngagement+ supra note >D+ WWW F/ !,:/ 841/ at WWW/

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there is no reason to think that this teaching modality is limited to moralityH one can

learn financial planning+ counseling+ etc/+ in an educational environment/ -hy is moral

learning for the purpose of moral dialogue preferred over other non.legal skills? n the

other hand+ if all non.legal skills are necessary+ how many individuals would have the

competence to function as a legal technician?

"lients form relationships with lawyers because they need and desire legal

representation/ 3 do not disagree with the claim that some legal representations raise

moral issues/ 3 see+ however+ no basis to conclude that lawyers have particular skill or

ability to provide moral advice or engage in moral deliberation with clients at anything

but the most perfunctory and meaningless level+ e/g/+ -hat you clientA want to do is

legally permitted but unjust/ 3 see no basis to conclude that clients want moral advice

or moral dialogue from lawyers/ 3f they do they can request it or+ better yet+ seek moral

engagement from those who have e#pertise in the field/ 9bsent evidence that lawyers

have a competency here to fill an unmet client need+ there is no reason to create a duty

that is both incapable of being met and undesired by clients/

I-

LAWYERS MORAL DELIBERATION

The argument for lawyer moral accountability springs from the perception that

much of what lawyers do on behalf of clients is amoral/ !awyers must be moral actors

because clients+ if left to their own devices+ will not make morally correct decisionsH

rather+ clients will act immorally+ relying on the lawyer to keep them from acting illegally/

=y facilitating client immorality+ lawyers themselves act immorally/ "omplementary to

this critique is the necessarily included point that the principle of non.accountability

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stunts moral growth and prevents lawyers from e#ercising moral judgment/ There is+

however+ a fundamental oversight in this position/ !awyers may not be moral actors+

but it is not because professional rules prevent them from doing so/ 9t many critical

points+ professional rules permit moral deliberation by lawyers/ There is+ however+ little

evidence that lawyers elect to engage in moral deliberation even when professional

codes e#pressly permit it/

8rofession rules generally require lawyers to preserve the confidences and

secrets of the client/>( The professional duty of confidentially has largely instrumental

roots the duty encourages client disclosure so that the lawyer may accurately advise

the client/@* The professional duty is not+ however+ absolute/ 3n some circumstances

the lawyer may weigh the benefits promoted by the professional duty/ 1or e#ample+

9=9 Model 4ule '/>bA permits disclosure 'A when the lawyer reasonably believes

disclosure of client confidential information is necessary to prevent reasonably certain

death or substantial bodily harm/@'9nother provision sets a similar threshold if the

lawyer services were used to further reasonable certain substantial financial injury or

property loss/@$ 3n this conte#t+ once the threshold is met+ the lawyer is given discretion

to disclose/ =ecause the decision is committed to the lawyer2s discretion+ the lawyer is

free to apply the lawyer2s personal moral values in deciding whether to disclose/ The

lawyer2s value structure may emphasi0e client loyalty over client betrayal or may

emphasi0e protecting individuals from bodily or financial harm over protecting client

69 9=9 M*+ cmt/b $***A/71 9=9 M


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confidentiality/ -hat is the correct or best moral resolution of the issue is not the pointH

what is the point that professional rules permit moral deliberation here and at a number

of critical points in the representation/ This includesG

$


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lawyers who terminate relationships with clients are more likely to do so because of the

legal risk of continued association+ rather than moral disagreement+ with clients/ @> 3

believe that this aversion to moral dialogue and deliberation is because lawyers largely

agree with the objectives their clients seek/ -hether this is due to lawyer self.interest

or lawyer cognitive dissonance is immaterialH lawyers are unlikely to have moral qualms

with their clients2 activitiesH if they did one doubts they would continue in the area of

practice/ 3f you agree with your client2s objectives+ it is unlikely that you will have a

dialogue with the client or yourself over the efforts undertaken to achieve the objectives+

much less the objectives themselves/

,ven if the lawyer has moral qualms it is unlikely the lawyer will feel qualified or

comfortable confronting the client unless the client signals some receptiveness to a

dialogue on the issue/ There probably are some clients who would be receptive+ but

there is no reason to believe that clients in general desire that their lawyers provide

moral as well as legal advice/ More importantly+ neither the legal profession+ through its

professional codes+ nor the political branches+ through enacted law+ have deemed it

advisable or advantageous for lawyer to dispense moral advice as a necessary element

of the practice of law/ 3 do not contend that this is costless/ =ut the antidote would

prefer the interests of agents lawyersA to feel morally good over the rights of principals

clientsA to have their legal positions protected and advanced/ 1or the reasons stated in

this essay+ that result would be undesirable/

76 9nthony ,/


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CONCL*SION

This concern that the standard conception of lawyering client centeredness and

moral non.accountabilityA facilitates and enables harmful behavior is correct if we define

harmful behavior as immoral behavior by the client/ 3t may seem apparent that enabling

that behavior is itself immoral+ but that characteri0ation ignores the larger social conte#t

in which lawyers and clients act/ -hat is morally correct behavior is often contentious

and disputable/ "onferring a power on lawyers to use their own views of morally correct

behavior to trump client views could lead to clients being unable to achieve legally

proper goals/ Such a result is improper given the unique role lawyers serve as agents

of the legal system/ 3t is also improper in that it could facilitate discrimination by lawyers

against unpopular+ insular groups/

Bolding lawyers morally accountable for professionally proper conduct is also

pernicious because it e#alts the lawyer2s policy preferences over those of the client/ 3t

does not help the argument that the lawyer dresses the preferences in the guise of

moral analysis or moral obligation/ The situations in which lawyers act represent cases

in which plausible policy arguments can be made for each side2s position/ Moral

accountability is simply a mask that allows the lawyer to prefer her harm.benefit policy

calculus over that of the client/ 9s a private citi0en+ the lawyer surely has that

prerogative/ 9s a lawyer operating as a necessary and essential intermediary between

the client and the legal system+ giving lawyers2 incentives to prefer their own moral

sentiments over those of their clients will necessary result on a reduction of the client2s

legal rights and a possible skewing of that inevitable loss against unpopular minorities/

Documents

Good Persons Good Lawyers and Good Lawyering 2