I'm drafting a presentation for my Inn of Court, to be delivered next month. We have judges (appellate and trial; state and federal), practitioners (mostly litigators) and students (Santa Clara, Lincoln, Stanford). The idea is to present a vignette that will engender group discussion. We're drafting vignettes where young lawyers reach an ethical fork in the road. We want to highlight some of the larger ethical choices lawyers face: moral activism vs amoral lawyering; keeping a division between profession and religion vs. seeing your professional life as an aspect of your religious life; and focusing on just the client vs. viewing the client as part of a social system.
Each choice has been explored in the academic literature (e.g., the Pepper - Luban debate), and we'll provide a bibliography to that literature, but for present purposes we need to write an accessible sketch that gets the conversation going without being too simplistic.
Beneath the jump is an early draft. We will have the student members reach a fork in the road where two lawyers will be urging them to take different paths. We'd love to see any suggestions, re-writes, etc., from readers, so if you are interested please try your hand. Please bear in mind that all contributions might be used by our Inn (with attribution) and will become part of a widely available library of previous Inn presentations. Each lawyer urging a student to follow a particular path will probably speak for only 2-3 minutes, so the idea is to get the basic principles out there.
Thanks in advance.
Moral activist vs. Amoral Counselor
Lawyer: I’m at a fork in the road. What are my choices here?
Activist: “As a lawyer, you should be a moral activist.
Morality governs all of us. Just because they issue you a bar card, you don’t get an exemption from morality. Morally responsible for the projects you undertake. You are morally responsible for the goals you seek. Morally responsible for the ends you use.
Because of that, lawyers should engage in moral activism in each representation. Just the same as everyone else. If you help a client pursue an immoral outcome, don’t kid yourself. You’re behaving immorally. Your bar card won’t help you. Abraham Lincoln got it right when he said, “some things legally right are not morally right.”
And so, lawyers should help their clients seek just results. Lawyers should morally engage society—and morally engage clients as well. If the client wants to do something you know to be immoral, either talk the client out of it, or refuse to participate.
[more to be added]
Amoralist: “Hey, kid, don’t fall for that. As a lawyer the moral choice is to be amoral. Not immoral. But amoral.
The best thing we can do is assist our clients in implementing their choices. It’s not up to us to decide what’s the moral result.
Sure, we can’t assist crimes or frauds. And we shouldn’t bring frivolous or abusive claims. But besides that, it’s the clients, not us, who decides what’s moral and what isn’t.
As lawyers, we are agents. The clients are the autonomous ones, not us. This is a complicated world. People can't participate fully as first class citizens unless they can get legal assitance when they need it. If we respect the autonomy, equality, and diversity of our fellow citizens, we'll let them handle the moral issues. We can handle the technical issues.
Of course, we can talk to the clients. We can engage in "moral dialogue." We can help them consider the full range of possibilities and outcomes. And in the very extreme cases we can decide not to be a lawyer or not to participate in a matter. But day in and day out, when it comes to weighing the moral objectives, that’s’ not our job.
Young Lawyer: Here’s what I think . . .
Inn Discussion.
Scene 3
Religious Lawyering vs. Separating Religious and Professional Life
Lawyer: I’m at another fork in the road. What are my choices here?”
Separationist: “You should keep a division between your religious life and your personal life. For the most part, our nation and profession have erected a wall between religion and the secular law. You don’t cite to religious texts when you’re writing a brief; you cite to secular law.
Besides, our society is too pluralistic for religious views to guide our lawyering. Not only do we have lots of different religions, we have agnostics and atheists too. The system needs to used by people of all kinds of religious and non-religious backgrounds, so the system just can’t accommodate much overt religious behavior.
Even though religion might unify people in the church, temple, or mosque, it causes too much division in the public square. The law can’t be seen as taking sides in religious debates and neither can lawyers. We have to be open to representing all citizens.
Religious Lawyer: “Your spirituality is integral to who you are. Don’t leave it on the bookshelf while you are lawyering. Make your lawyering just as much an expression of your religion as every other part of your life.
[more to be added]
Young Lawyer: Here’s what I think . . .
Inn Discussion:
Scene 4
Client-Centered vs. Holistic
Zealous Lawyer: “‘A lawyer knows but one person in all the worlds and that person is the client!’ Fight for your clients. Don’t pull your punches. Don’t try to appease the other lawyer. Respect the judge, but don’t curry favor. Lawyers are fighters. We are champions! And we represent our individual clients.
If you’re worried about the big picture, just remember that the adversary system handles that for us. If each lawyer focuses on just the client, then the judge, the jury, and the legislature handle the big picture.
Holistic: “’No man or woman is an island.’ We’re all part of families, communities, and societies. If we inflict damage on everyone but our client, we will inflict damage on the client.
Don’t assume it’s for someone else to think about the effects of what you’re doing. You need to think about it. So does your client.
You never represent a pure individual. Your clients have duties to all sorts of people. And so do you. The social web
Ask audience is anyone has advice for young lawyer on this issue?
Young Lawyer: Here’s what I think . . .
Inn Discussion:
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