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Before reading the following materials, think briefly about why you chose to become a lawyer. What do you want from your professional career? What are your goals and expectations?
Then think about what is expected of you. To whom do you have obligations, and what are they? Are all these obligations consistent, or do they conflict? As an attorney, what role do you play vis-a-vis your clients, the courts and the "system?" How will you and your role be perceived by non-lawyers, and are you prepared to deal with that image?
It is a singularly good thing, I think, that law students, and even some lawyers and law professors, are questioning with increasing frequency and intensity whether "professional-ism" is incompatible with human decency - asking, that is, whether one can be a good lawyer and a good person at the same time. I have a special interest in that question because Professor John T. Noonan, Jr. (a personal friend, perceptive critic, and a previous speaker in this annual series) has drawn the inference from my book that I do not believe that a decent, honest person can practice criminal law or teach others to do so. In fact, the title of today's paper derives directly from a challenge issued to me in the concluding paragraph of Professor Noonan's review of my book, urging that I write on "Personal Responsibility in a Professional System. At the same time that I address the issue of professionalism and personal moral responsibility, I want also to discuss an integrally related question, one that is often expressed in terms of whether it is the lawyer or the client who should exercise control" in the relationship between them. As it is frequently put: Is the lawyer just a "hired gun," or must the lawyer "obey his own conscience, not that of his client"? Voicing a viewpoint prevalent in the profession, lawyers sometimes use the phrase "client control" (that is, control of the client by the lawyer) in expressing their professional pride in maintaining the proper professional relationship. In a law school commencement address titled "Professionalism in Lawyering," the Chief Judge of a federal court of appeals, Clement F. Haynsworth, stressed the importance of professional competence in handling a client's affairs; but, Chief Judge Haynsworth went on to say that of even "greater moment" than competence on the part of a lawyer is the fact that
he serves his clients without being their servant. He serves to further the lawful and proper objective of the client, but the lawyer must never forget that he is the master. He is not there to do the client's bidding. It is for the lawyer to decide what is morally and legally right, and, as a professional, he cannot give in to a client's attempt to persuade him to take some other stand.... [T]he lawyer must serve the client's legal needs as the lawyer sees them. During my years of practice, . . . I told [my clients] what would be done and firmly rejected suggestions that I do something which I felt improper.
Surely those are striking phrases to choose to describe the relationship of lawyer and client - the lawyer is "the master" who is "to decide what is morally ... right," and who serves the client's needs but only "as the lawyer sees them, not as the client sees them." Even more striking was the phrase once used by Charles Halpern, a sensitive and dedicated public interest lawyer; as between the lawyer and client, he observed, it is the lawyer who holds "the whip hand.
Thurmond Arnold, who was a prominent practitioner and also a federal appellate court judge, held a philosophy similar to Judge Haynsworth's. As described with approval by former Supreme Court Justice Abe Fortas, Arnold did not permit a client "to dictate or determine the strategy or substance of the representation, even if the client insisted that his prescription for the litigation was necessary to serve the larger cause to which he was committed."
Critics of the legal profession argue not that such attitudes and practices are elitist and paternalistic, but rather, that not enough lawyers abide by them. In an article on "Lawyers as Professionals: Some Moral Issues," Professor Richard Wasserstrom. recalls John Dean's list of those involved in the Watergate cover-up. Dean had placed an asterisk next to the names of each of the lawyers on the list, because he had been struck by the fact that so many of those implicated were lawyers. Professor Wasserstrom concludes that the involvement of lawyers in Watergate was "natural, if not unavoidable," the "likely if not inevitable consequence of their legal acculturation." Indeed, on the basis of Wasserstrom's analysis, the only matter of wonder is why so many of those on John Dean's list were not lawyers. What could possibly have corrupted the non-lawyers to such a degree as to have led them into the uniquely amoral and immoral world of the lawyers? "For at best," Wasserstrom asserts, "the lawyer's world is a simplified moral world; often it is an amoral one; and more than occasionally perhaps, an overtly immoral one."
Professor Wasserstrom holds that the core of the problem is professionalism and its concomitant, role-differentiated behavior. Role differentiation refers, in this con-text, to situations in which one's moral response will vary depending upon whether one is acting in a personal capacity or in a professional, representative one. As Wasserstrom says, the "nature of role-differentiated behavior ... often makes it both appropriate and desirable for the person in a particular role to put to one side considerations of various sorts - and especially various moral considerations - that would otherwise be relevant if not decisive."
An illustration of the "morally relevant considerations" that Wasserstrom has in mind is the case of a client who desires to make a will disinheriting her children because they opposed the war in Vietnam. Professor Wasserstrom suggests that the lawyer should refuse to draft the will because the client's reason is a "bad" one. But is the lawyer's paternalism toward the client preferable - morally or otherwise - to the client's paternalism toward her children?
"We might all be better served," says Wasserstrom, "if lawyers were to see themselves less as subject to role-differentiated behavior and more as subject to the demands of the moral point of view." Is it really that simple? What, for example, of the lawyer whose moral judgment is that disobedient and unpatriotic children should be disinherited? Should that lawyer refuse to draft a will leaving bequests to children who opposed the war in Vietnam?
If the response is that we would then have a desirable diversity, would it not be better to have that diversity as a reflection of the clients' viewpoints, rather than the lawyers'?
In another illustration, Wasserstrom suggests that a lawyer should refuse to advise a wealthy client of a tax loophole provided by the legislature for only a few wealthy taxpayers. If that case is to be generalized, it seems to mean that the profession can properly regard itself as an oligarchy whose duty is to nullify decisions made by the people's duly elected representatives. That is, if the lawyers believe that particular clients (wealthy or poor) should not have been given certain rights, the lawyers are morally bound to circumvent the legislative process and to forestall the judicial process by the simple device of keeping their clients in ignorance of tempting rights.
Nor is that a caricature of Wasserstrom's position. The role-differentiated amoral-ity of the lawyer is valid, he says, "only if the enormous degree of trust and confidence in the institutions themselves [that is, the legislative and judicial processes] is itself justified." And we are today, he asserts, "certainly entitled to be quite skeptical both of the fairness and of the capacity for self-correction of our larger institutional mechanisms, including the legal system." If that is so, is it not a non sequitur to suggest that we are justified in placing that same trust and confidence in the morality of lawyers, individually or collectively?
There is "something quite seductive," adds Wasserstrom, about being able to turn aside so many ostensibly difficult moral dilemmas with the reply that my job is not to judge my client's cause, but to represent his or her interest. Surely, however, it is at least as seductive to be able to say, "My moral judgment - or my professional responsibility - requires that I be your master. Therefore, you will conduct yourself as I direct you to."
A more positive view of role-differentiated behavior was provided in an article in the New York Times about the tennis star, Manuel Orantes:
He has astounded fans by applauding his opponent's good shots and by purposely missing a point when he felt that a wrong call by a linesman has hurt his opponent.
"I like to win," he said in an interview, "but I don't feel that I have won a match if the calls were wrong. I think if you're playing Davis Cup for your country it might be different, but if I'm playing for myself I want to know I have really won."
That is, one's moral responsibilities will properly vary depending, among other things, upon whether one has undertaken special obligations to one's teammates or to one's country.
Taking a different illustration, let us suppose that you are going about some pressing matter and your arm is suddenly seized by an old man with a long, gray beard, a wild look in his eye, and what appears to be an enormous dead bird hanging around his neck, and he immediately launches into a bizarre tale of an improbable adventure at sea. If he is a stranger and you are alone on a poorly lighted street, you may well call the police. If he is a stranger but you decide that he is harmless, you may simply go on to your other responsibilities. If he is a friend or member of your family, you may feel obligated to spend some time listening to the ancient mariner, or even to confer with others as to how to care for him. If you are a psychiatric social worker, you may act in yet some other way, and that action may depend upon whether you are on duty at your place of employment, or hurrying so that you will not be late to a wedding - and, in the latter case, your decision may vary depending upon whether the wedding is someone else's or your own. Surely there can be no moral objection to those radically different courses of conduct, or to the fact that they are governed substantially by personal, social, and professional context - that is, by role--differentiation. One simply cannot be expected, in any rational moral system, to react to every stranger in the same way in which one may be obligated to respond to a member of one's family or to a friend.
Thus, in an interesting and thought-provoking article, Professor Charles Fried has analogized the lawyer to a friend - a "special-purpose" or 'limited-purpose" friend "in regard to the legal system." The lawyer, thereby, is seen to be "someone who enters into a personal relation with you - not an abstract relation as under the concept of justice." That means, Fried says, that "like a friend, [the lawyer] acts in your interests, not his own; or rather, he adopts your interests as his own."
The moral foundation on which Fried justifies that special-purpose friendship is the sense of self, the moral concepts of "personality, identity, and liberty." He notes that social institutions are so complex that, without the assistance of an expert adviser, an ordinary lay person cannot exercise the personal autonomy to which he or she is morally and legally entitled within the system. "Without such an adviser, the law would impose constraints on the lay citizen (unequally at that) which it is not entitled to impose explicitly." The limited purpose of the lawyer's friendship, therefore, is "to preserve and foster the client's autonomy within the law." Similarly, Professor Sylvia A. Law has written: "A lawyer has a special skill and power to enable individu-als to know the options available to them in dealing with a particular problem, and to assist individuals in wending their way through bureaucratic, legislative or judicial channels to seek vindication for individual claims and interests. Hence, lawyers have a special ability to enhance human autonomy and self-control." She adds, however, that "far too often, professional attitude, rather than serving to enhance individual au-tonomy and self-control, serves to strip people of autonomy and power. Rather than encouraging clients and citizens to know and control their own options and lives, the legal profession discourages client participation and control of their own legal claims."
The essence of Professor Fried's argument does not require the metaphor of friendship, other than as an analogy in justifying the lawyer's role-differentiation. It was inevitable, however, that Fried's critics would give the metaphor of friendship the same emphasis that Fried himself does and, thereby, consciously or not, miss the essential point he makes that human autonomy is a fundamental moral concept that must determine, in substantial part, the answers that we give to some of the most difficult issues regarding the lawyer's ethical role.
Thus, in a response to Fried, Professors Edward A. Dauer and Arthur Allen Leff make some perceptive and devastating comments about the limited-purpose logic of Fried's metaphor of friendship. At the same time, however, Dauer and Leff express their own views of the lawyer's role and character, views which I find to be both cynical and superficial. An "invariant element" of the lawyer-client relationship, they see as follows:
The client comes to a lawyer to be aided when he feels he is being treated, or wishes to treat someone else, not as a whole other person, but (at least in part) as a threat or hindrance to the client's satisfaction in life. The client has fallen, or wishes to thrust someone else, into the impersonal hands of a just and angry bureaucracy. When one desires help in those processes whereby and wherein people are treated as means and not as ends, then one comes to lawyers, to us. Thus, if you feel the need for a trope to express what a lawyer largely is, perhaps this will do: A lawyer is a person who on behalf of some people treats other people the way bureaucracies treat all people - as nonpeople. Most lawyers are free-lance bureaucrats. . . . "
Despite that caricature, Dauer and Leff manage to conclude that "a good lawyer can be a good person." They do so, however, by defining 'a good person' in the following limited terms: "In our view the lawyer achieves his "goodness" by being -professionally - no rottener than the generality of people acting so to speak, as amateurs."
The best that can be said for that proposition, I believe, is that it is not likely to stop students with any moral sensitivity from continuing to ask whether it is indeed possible for a good lawyer to be a good person.
The most serious flaw in Professor Fried's friendship metaphor is that it is misleading when the moral focus is on the point at which the lawyer-client relation-ship begins. Friendship, like love, seems simply to happen, or to grow, often in stages of which we may not be immediately conscious. Both in fact and in law, however, the relationship of lawyer and client is a contract, which is a significantly different relationship, formed in a significantly different way.
Unlike friendship, a contract involves a deliberate choice by both parties at a particular time. Thus, when Professor Fried says that friendship is "an aspect of the moral liberty of self to enter into personal relations freely," the issue of the morality of the decision to enter the relationship is blurred by the amorphous nature in which friendships are formed. Since entering a lawyer-client contract is a more deliberate, conscious decision, however, that decision can justifiably be subjected to a more searching moral scrutiny.
In short, a lawyer should indeed have the freedom to choose clients on any standard he or she deems appropriate. As Professor Fried points out, the choice of client is an aspect of the lawyer's free will, to be exercised within the realm of the lawyer's moral autonomy. That choice, therefore, cannot properly be coerced. Con-trary to Fried's view, however, it can properly be subjected to the moral scrutiny and criticism of others, particularly those who feel morally compelled to persuade the lawyer to use his or her professional training and skills in ways that the critics consider to be more consistent with personal, social, or professional ethics.
As I have stressed elsewhere, however, once the lawyer has assumed responsibil-ity to represent a client, the zealousness of that representation cannot be tempered by the lawyer's moral judgments of the client or of the client's cause. That point is of importance in itself, and is worth stressing also because it is one of the considerations that a lawyer should take into account in making the initial decision whether to enter into a particular lawyer-client relationship.
In disagreeing with Professor Wasserstrom's criticism of role-differentiation, I did not mean to suggest that role-differentiation has not produced a degree of amoral-ity, and even immorality, into the practice of many lawyers. The problem, as I see it, is expressed in the news item I quoted earlier regarding Manuel Orantes. Playing for himself, Mr. Orantes has earned an enviable reputation, not only for his athletic prowess, but also for his good sportsmanship - if you will, for his morality in his relations with his adversaries. Yet when he plays with teammates and for his country, he adopts different standards of conduct.
I think that Mr. Orantes is wrong in a way that many lawyers frequently are wrong. I do not mean that in Davis Cup play he is not bound by special, voluntarily assumed obligations to others. On the contrary, he is bound by his role as teammate and countryman to accept the decision of his teammates, which may well be that each player should play to win, without relinquishing any advantage that the rules of the game and the calls of the judges allow. Where Orantes is wrong, however, is in preempting that decision, in assuming that their decision is that winning is all. Perhaps if he actually put the choice to them, Orantes' teammates would decide that they would prefer to achieve, for themselves and for their country, the kind of character and reputation for decency and fairness that Orantes has earned for himself. Perhaps they would not decide that way. The choice, however, is theirs, and it is a denial of their humanity to assume the less noble choice and to act on the assumption without consultation.
In day-to-day law practice, the most common instances of amoral or immoral conduct by lawyers are those occasions in which we preempt our clients' moral judgments. That occurs in two ways. Most commonly we assume that our function is to maximize the client's position - the client's material or tactical position, that is - in every way that is legally permissible. Since it is our function not to judge the client's cause, but to represent the client's interests, we tend to assume the worst regarding the client's desires. Much less frequently, I believe, a lawyer will decide that a particular course of conduct is morally preferable, even though not required legally, and will follow that course on the client's behalf. In either event, the lawyer fails in his or her responsibility to maximize the client's autonomy by providing the client with the fullest advice and counsel, legal and moral, so that the client can make the most informed choice possible.
Let me give a commonplace illustration. Two experienced and conscientious lawyers, A and B, once asked me to help them to resolve an ethical problem. They represented a party for whom they were negotiating a complex contract involving voluminous legal documents. The attorneys on the other side were insistent upon eliminating a particular guarantee provision, and A and B had been authorized by their client to forego the guarantee if the other side was adamant. The other lawyers had overlooked, however, that the same guarantee was provided elsewhere in the documents, more broadly and unambiguously stated. Having agreed to eliminate the guarantee provision, with specific reference to a particular clause on a particular page, were A and B obligated to call the attention of opposing counsel to the similar clause on a different page? Or, on the contrary, were they obligated, as A put it, "to represent our client's interest, rather than to educate the lawyers on the other side?" Each of the lawyers was satisfied that, if he were negotiating for himself, he would unquestion-ingly point out the second guarantee clause to the other party. Moreover, each of them was more attentive to, and concerned about, questions of professional responsibility than most lawyers probably are - each of them, that is, was highly sensitive to the question of personal responsibility in a professional system. Yet it had occurred to neither of them that their professional responsibility was not to resolve the issue between themselves, but rather to present the issue to the client for resolution .
Our discussion thus far has related to decisions that are clearly in the moral or ethical realm. What of tactical decisions? Are those significantly different and there-fore within the lawyer's ultimate control?
At one time I had the notion, based on fantasy, that Alger Hiss had no involvement with Whittaker Chambers' nefarious activities, but that Hiss’ wife did. Assuming such a case, imagine Mr. Hiss' lawyer advising him that the only way to defend himself would be to tell the truth about his wife's involvement, and Hiss replying that, in no way, directly or indirectly, was his wife to be brought into the case, even if it meant an erroneous conviction for himself. In those circumstances, I find it hard to believe that even Clement Haynsworth or Thurmond Arnold would insist upon conducting the case in such a way as to implicate the client's wife.
Arguably, however, that case represents a moral decision rather than a tactical one. On the one hand, there is the client's love for and loyalty to his wife. On the other, there is the possibility of a wrongful conviction, and the likelihood that the client will give misleading, or even false, testimony in the effort to avoid implicating his wife.
I suspect, in fact, that the real reason lawyers prefer to make the final decision, and judges are inclined to give it to them, is professional pride, with the emphasis on the word pride. That is, the lawyer does not want the judge or any colleagues present to think that he or she is so unskilled as to have called a witness who is so vulnerable to cross-examination. Insofar as the lawyer's response would be that the lawyer's real concern is with the client's welfare, I think it is another instance of misplaced paternal-ism.
One of the essential values of a just society is respect for the dignity of each member of that society. Essential to each individual's dignity is the maximization of his or her autonomy or, as Pope John expressed it, "the right to act freely and responsibly ... acting chiefly on his own responsibility and initiative [and] ... on his own decision."
In order to exercise that responsibility and initiative, each person is entitled to know his or her rights against society and against other individuals, and to decide whether to seek fulfillment of those rights through the due processes of law.
The lawyer, by virtue of his or her training and skills, has a legal and practical monopoly with respect to access to the legal system and knowledge about the law. Legal advice and assistance are often indispensable, therefore, to the effective exercise of individual autonomy.
Accordingly, the attorney acts both professionally and morally in assisting clients to maximize their autonomy, that is, by counseling clients candidly and fully regard-ing the clients' legal rights and moral responsibilities as the lawyer perceives them, and by assisting clients to carry out their lawful decisions. Further, the attorney acts unprofes-sionally and immorally by depriving clients of their autonomy, that is, by denying them information regarding their legal rights, by otherwise preempting their moral decisions, or by depriving them of the ability to carry out their lawful decisions.
Until the lawyer-client relationship is contracted, however - until, that is, the lawyer induces another to rely upon his or her professional knowledge and skills - the lawyer ordinarily acts entirely within the scope of his or her own autonomy. Barring extraordinary circumstances [for example, the obligation to represent someone who would otherwise be unrepresented], therefore, the attorney is free to exercise his or her personal judgment as to whether to represent a particular client. Since a moral choice is implicated in such a decision, however, others are entitled to judge and to criticize, on moral grounds, a lawyer's decision to represent a particular client.
Finally, those of us who teach law have a primary professional obligation to explicate the moral implications of the law in general and of lawyers' ethics in particular.
If we conscientiously carry out those personal and professional responsibilities, then I do believe that professionalism is consistent with decency, and I therefore conclude that one can indeed be a good lawyer and a moral person at the same time.
1. Can a good lawyer be a good person? To what extent can (should) a lawyer put aside his or her own values in representing a client? Should a lawyer decline representation because he or she disagrees with the client? With the client's means? With procedures he or she must use to accomplish either?
Is it OK to be amoral as long as we're not immoral? Is it OK to pursue legal, but in your view immoral, ends of a client? Is there anything wrong in asking people with legal but (arguably) immoral aims to accomplish those aims themselves? Does it (should it) matter that there is likely to be less (or un-) ethical lawyers around-to do the client's bidding, and if done by those with a better sense of ethics, at least there is some hope for a better (more just) result?
Are these even appropriate concerns? Should we discuss the morality or "rightness" of goals and means with the client, or are we to address only the legal aspects of a client's affairs? See MR. 2.1.
2. Consider the following principles set out by Professor Murray Schwartz in his article The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 678 (1978):
Principle of Professionalism for the Advocate:
When acting as an advocate, a lawyer must, within the established constraints on professional behavior, maximize the likelihood that the client will prevail.
Corollary Principle of Non-Accountability:
When acting as an advocate for a client according to the Principle of Professionalism, a lawyer is neither legally, professionally, nor morally accountable for the means used or the ends achieved.
Professor Schwartz adopted these principles, which allow for extreme role-differentiated behavior, for the attorney acting in his or her role as an advocate within the adversary system. Should such principles apply to attorneys acting as advocates? Should they apply in other contexts as well (i.e. advising, counseling, negotiating)? Is there something about the adversary system, or acting as an advocate, which justifies such a rule in that context but not in others?
3. Has the growth of law as a business undercut the view of lawyers as professionals? Is this desirable? What problems arise from viewing lawyers as business people rather than professionals? What benefits? The ABA has been increasingly concerned with these issues, which lie at the core of the future of the Legal Profession. See ABA Commission on Professionalism, In The Spirit of a Public Service: A Blueprint for the Rekindling of Lawyer Professionalism (1986). This concern is also reflected in the adoption of two "Creeds of Professionalism" by the House of Delegates at the August 1988 Annual Meeting of the ABA. The first, proposed by the ABA Torts and Insurance Practice Section, contains thirty-three "credos" aimed at doing away with a "win at any cost" mentality and encouraging fairness in litigation. The second, proposed by the Young Lawyers Division, is a twelve statement "pledge of professionalism." Both of these statements were approved for wide dissemination, but are only, aspirational in nature. At least one court, however, has adopted standards of conduct which contain guidelines for 'professional courtesy directed at curbing abuses by lawyers in their dealings with each other. See Dondi Properties Corp. v. Commerce Savings and Loan Ass'n, 121 F.R.D. 284 (N.D. Tex. en banc 1988). Similar tenets of professional courtesy have been adopted by both the Young Lawyers Section of the Missouri Bar and the KCMBA.
Does the apparent increase in hard-ball tactics and decrease in courtesy and cooperation reflect an increase or a decrease in professionalism? Does it depend on how one defines professionalism? Is courtesy a professional value if it doesn’t advance the client’s interests? Or is collegiality and trust among lawyers a necessary part of professionalism regardless of the client’s interests? Do these apparent changes in behavior on the part of many lawyers reflect changes in the times that are beyond our control as attorneys (and that in fact merely mirror changes in business and personal relationships) or are these matters that the Bar can and should address?
There are obviously no right answers to these difficult questions, but issues of role, identity, professionalism, and acceptance of "the system" will continue to require consideration as we proceed through these materials.
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